AO 241 Page 2 (Rev. 12/04) PETITION UNDER 28 U.S.C FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY. Docket or Case No.

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1 AO 241 Page 2 PETITION UNDER 28 U.S.C FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY United States District Court District: Western District, Northern Div. Name (under which you were convicted) Alan Roger Harris Place of Confinement: Straits Correctional Facility 4387 W. M-80 Kincheloe, MI Docket or Case No. Prisoner Number: A Petitioner (include the name under which you were convicted) Alan Roger Harris Respondent (authorized person having custody of you) Jeri-Ann Sherry, Warden The Attorney General State of Michigan PETITION 1. (a) Name and location of court that entered the judgment of conviction you are challenging: 3rd Circuit Court for the County of Wayne Criminal Division Frank Murphy Hall of Justice 2 Woodward Avenue Detroit, MI (313) (b) Criminal docket or case number (if you know): (a) Date of the judgment of conviction (if you know): April 11, 2002 (b) Date of sentencing: May 16, Length of sentence: 18 Months - 20 years 4 In this case, were you convicted on more than one count or more than one crime? NO 5. Identify all crimes of which you were convicted and sentenced in this case: MCL c(2) 6. (a) What was your plea? (Check One) (1) Not guilty (3) Nolo Contendre (2) Guilty (4) Insanity pleas

2 AO 241 Page 3 (b) If you entered a guilty plea to one count or charge and a not guilty plea to another count or charge, what did you plead guilty to and what did you plead not guilty to? (c) If you went to trial, what kind of trial did you have? (Check one) Jury Judge Only 7. Did you testify at a pretrial hearing, trial, or a post-trial hearing? Yes No 8. Did you appeal from the judgment of conviction? Yes No 9. If you did appeal, answer the following: (a) Name of court: Michigan Court of Appeals (b) Docket or case number (if you know): No (c) Result: Denied (d) Date of Result (if you know): October 12, 2004 (e) Citation to the case (if you know): (f) Grounds raised: 1) Insufficiency of evidence using believe in jury instructions instead of know, no child as defined in statute as person under 18. Also failure to allege or prove intent to arrange for, produce, distribute, or possess child pornography. 2) Incorrect jury instructions on elements - believe instructed v. Know in statute - judge said element of child proved by People v. Thousand (check transcript) 3) Ineffective assistance of counsel - trial counsel and appellate attorney a) - Trial Counsel: no trial strategy two weeks before trial, failure to move to admit Attorney Werme pro hac vice, failure to give notice of expert, attorney not familiar with rules of evidence, failure to object coherently, failure to access discovery material (provided ONLY on a CD-rom), failure to request forensic examination of computer, failure to withdraw immediately when requested, failure to give closing argument requested, resulting in closing argument characterized by prosecution as ridiculous, permitting Defendant to use list of questions with answers on stand, resulting in admonition by court, inability to argue entrapment defense, failure to recognize and raise plain purpose of statute as articulated in People v. Ward, 206 Mich. App. 38 (to deter use of children for production of child pornography, possession and distribution), lack of privacy in conferring with counsel. b) Appellate counsel - failure to pursue errors committed by trial counsel,

3 AO 241 Page 4 including failure to request trial court hearing on ineffective assistance of counsel ( Ginther hearing), late filing resulting in loss of right to oral argument, lack of privacy in consult with appellate counsel in prison. 4) erroneous admission of photographs and logs of computer chats unrelated to offense, contrary to MRE 404(b). 5) preparation without actual attempt cannot be a crime. 6) Failure to admit second attorney pro hac vice - (judicial abuse of discretion), raised again as a result of new MI law in Motion to Supplement Standard 11 Brief) 7) Prosecutorial misconduct in mis-charging, leading to absurd result - i.e. direct face-to-face solicitation of minor for sexual contact was misdemeanor at time of Defendant's conduct, whereas in this case, an adult police officer solicited him on line, and the penalty is 18 mos - 20 years because he was charged under statute which purpose is to deter use of children in pornography or possession of child pornography, failure to charge element of crime (existence of child, defined in statute as person under 18), intent to arrange for, produce, distribute, or possess child pornography. 8) Cumulative error mandating reversal. (g) Did you seek further review by a higher state court? Yes No If yes, answer the following: (1) Name of court: Michigan Supreme Court (2) Docket or case number (if you know) No (3) Result: Review Denied (4) Date of result (if you know): August 9, 2005 or August 30, 2005 (as per docket sheet) (5) Citation to the case (if you know): PEOPLE v. HARRIS, 474 Mich. 852, 702 N.W.2d 581 (2005) (6) Grounds raised: 1) Failure to show intent to arrange for, produce distribute, or possess sexually explicit material involving children as per statutory history and case law interpretation. 2) erroneous jury instruction on believed v. know wording in statute, also wording that the child is a child. (Defined in statute as person under 18 - there was no child) and no jury instruction on intent to arrange for, produce, or distribute child pornography. 3) failure to prove statutory element - child - because there was none

4 AO 241 Page 5 4) admission of highly prejudicial other act evidence that was unreliable hearsay - admitted to be unreliable by the judge. (transcripts of on-line chats, ) 5) cumulative error from ineffective assistance of trial counsel and appellate counsel a) Trial Counsel - affidavit of Attorney Werme in support thereof prepared without transcript, and could not be expected to point out specific instances of ineffective assistance without benefit of transcript, statement of trial counsel on record that he was ineffective, did not know how to admit Werme pro hac vice, Defendant's April 4, 2002 Emergency Motion for Appointed Counsel Based on Ineffective Counsel and Stay of Proceedings. (April 4, 2002 was first day of trial testimony), failure to argue Rule 404B objections on prejudicial other evidence, failure to articulate coherently why failure to receive balance of hard drive contents was extremely important to defense, failure to prevail on submission of chats that were of same character as the prejudicial prosecution other act evidence that tended to be exculpatory (prosecution kept them out as irrelevant hearsay), affidavit that on eve of trial, no trial strategy, failure of trial counsel to make notes, failure to object properly, demeanor in court. b) Appellate Counsel - failure to request Ginther hearing on ineffective assistance of counsel despite explicit instructions to do so, appellate counsel's actual prejudice against defendant as evidenced by her statement that she believed he was actually guilty, failure to brief all trial errors as instructed. 6) Did requirement that Defendant completely refrain from using a computer as a condition of his bond deny him effective counsel where he was unable to assist counsel at a critical stage of proceedings, namely preparation for trial? (Computer related crime, entire evidence submitted to defense counsel on CD-rom. He could not read it.) 7) Trial court error in sentencing Defendant to 18 months to 20 years on basis that client maintained his innocence during trial. 8) Is sentence 18 - mos - 20 years cruel and unusual punishment given guidelines in statute for sentencing and fact that no child involved in crime? 9) Should all evidence be excluded on basis of illegal wiretap and recording of on-line conversation? 10) Impossibility - actually a defense when no crime committed. (h) Did you file a petition for certiorari in the United States Supreme Court? Yes No If yes, answer the following:

5 AO 241 Page 6 (1) Docket or case number (if you know): (2) Result: (3) Date of result (if you know): (4) Citation to the case (if you know): 10. Other than the direct appeals listed above, have you previously filed any other petitions, applications, or motions concerning this judgment of conviction in any other court? Yes No 11. If your answer to Question 10 was Yes, give the following information: (a) (1) Name of court: (2) Docket or case number (if you know): (3) Date of filing (if you know): (4) Nature of the proceeding: (5) Grounds raised: (6) Did you receive a hearing where evidence was given on your petition, application, or motion? Yes No (7) Result: (8) Date of result (if you know): (b) If you filed any second petition, application, or motion, give the same information: (1) Name of court: (2) Docket or case number (if you know): (3) Date of filing (if you know): (4) Nature of the proceeding: (5) Grounds raised: (6) Did you receive a hearing where evidence was given on your petition, application, or motion? Yes No (7) Result: (8) Date of result (if you know): (c) If you filed any second petition, application, or motion, give the same information: (1) Name of court: (2) Docket or case number (if you know): (3) Date of filing (if you know): (4) Nature of the proceeding: (5) Grounds raised:

6 AO 241 Page 7 (6) Did you receive a hearing where evidence was given on your petition, application, or motion? Yes No (7) Result: (8) Date of result (if you know): (d Did you appeal to the highest state court having jurisdiction over the action taken on your petition, application, or motion? (1) First petition: Yes No (2) Second petition: Yes No (3) Third Petition Yes No (e) If you did not appeal to the state's highest court having jurisdiction, explain why you did not:

7 AO 241 Page For this petition, state every ground on which you claim that you are being held in violation of the Constitution, laws, or treaties of the United States. Attach additional pages if you have more than four grounds. State the facts supporting each ground. CAUTION: To proceed in the federal court, you must ordinarily first exhaust (use up) your available state-court remedies on each ground on which you request action by the federal court. Also, if you fail to set forth all the grounds in this petition, you may be barred from presenting additional grounds at a later date. GROUND ONE: The Trial Court denied me permission to have Paula J. Werme, Esq. as attorney pro hac vice. (a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim): This was done in the judge's chambers in a closed-chambers conference at which Defendant was not present and is not reflected in the record, except that Attorney Werme was told she could assist but not speak in the record. See supporting affidavit from Paula J. Werme dated July 14, 2006, and supporting affidavit from Alan R. Harris dated November 4, 2004, both of which verify that it was my intent to have Attorney Fregolle move Paula J. Werme, Esq. in as counsel pro hac vice, that Attorney Fregolle failed to do so on the record, but the matter was brought up in a closed-chambers conference, and denied by the judge. The trial transcript reflects that Attorney Werme will assist Attorney Fregolle with the understanding that she will be permitted to remain at counsel table to assist Mr. Fregolle during the entire proceeding. [Emphasis added.] The limitation was placed on Attorney Werme by the trial court, and it was not my wishes. (b) If you did not exhaust your state remedies on Ground One, explain why: - exhausted. (c) Direct Appeal of Ground One: (1) If you appealed from the judgment of conviction, did you raise this issue? Yes No (2) If you did not raise this issue in your direct appeal, explain why: (d) Post-Conviction Proceedings: (1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a state trial court? Yes No (2) If your answer to Question (d)(1) is Yes, state: Type of motion or petition: Name and location of the court where the motion or petition was filed: Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available): (3) Did you receive a hearing on your motion or petition? Yes No (4) Did you appeal from the denial of your motion or petition Yes No (5) If your answer to Question (d)(4) is Yes, did you raise this issue in the appeal? Yes No

8 AO 241 Page 9 (6) If your answer to Question (d)(4) is Yes, state: Name and location of the court where the appeal was filed: Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available): (7) If your answer to Question (d)(5) is No, explain why you did not raise this issue: (e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you have used to exhaust your state remedies on Ground One: None GROUND TWO: Absence of Defendant at critical stage of trial, specifically closed-chamber conference where jury instructions submitted by defense counsel and the admission of Paula J. Werme, Esq. as counsel pro hac vice were discussed and denied by the judge. (a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim): See supporting affidavit of Paula J. Werme, Esq. dated July 14, 2006 regarding this. See also: Affidavit of Alan R. Harris dated November 4, 2004, attached to and made a part of this pleading. My attorney was specifically asked to admit Paula J. Werme, Esq. pro hac vice, and did not do so because the judge indicated in the closed-chamber conference that he would not permit it. (b) If you did not exhaust your state remedies on Ground Two, explain why: ignorance (c) Direct Appeal of Ground Two: (1) If you appealed from the judgment of conviction, did you raise this issue? Yes No (2) If you did not raise this issue in your direct appeal, explain why: ignorance (structural) (d) Post-Conviction Proceedings: (1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a state trial court? Yes No (2) If your answer to Question (d)(1) is Yes, state: Type of motion or petition: Name and location of the court where the motion or petition was filed: Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available):

9 AO 241 Page 10 (3) Did you receive a hearing on your motion or petition?: Yes No (4) Did you appeal from the denial of your motion or petition : Yes No (5) If your answer to Question (d)(4) is Yes, did you raise this issue in the appeal? Yes No (6) If your answer to Question (d)(4) is Yes, state:: Name and location of the court where the appeal was filed: Docket or case number (if you know):: Date of the court's decision:: Result (attach a copy of the court's opinion or order, if available):: (7) If your answer to Question (d)(5) is No, explain why you did not raise this issue:: (e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you have used to exhaust your state remedies on Ground Two: GROUND THREE: Insufficient evidence - no child as defined in statute; since there was no child, there can be no crime. Also failure to allege or prove intent to arrange for, produce, distribute, finance, or possess child pornography. (a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim): The prosecution never alleged a real child from the beginning; also jury instruction on believe v. know that the child was a child defined in the statute as a person under the age of 18. The statute required knowing that the child was a child, and it is impossible to know a non-fact. There was no child. The jury instructions also failed to give any wording concerning arranging for, producing, distributing, financing or possessing child pornography. (b) If you did not exhaust your state remedies on Ground Three, explain why: (c) Direct Appeal of Ground Three: (1) If you appealed from the judgment of conviction, did you raise this issue? Yes No (2) If you did not raise this issue in your direct appeal, explain why: (d) Post-Conviction Proceedings: (1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a state trial court? Yes O No (2) If your answer to Question (d)(1) is Yes, state:

10 AO 241 Page 11 Type of motion or petition: Name and location of the court where the motion or petition was filed: Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available): (3) Did you receive a hearing on your motion or petition? Yes No (4) Did you appeal from the denial of your motion or petition Yes No (5) If your answer to Question (d)(4) is Yes, did you raise this issue in the appeal? Yes No (6) If your answer to Question (d)(4) is Yes, state: Name and location of the court where the appeal was filed: Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available): (7) If your answer to Question (d)(5) is No, explain why you did not raise this issue: (e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you have used to exhaust your state remedies on Ground Three: GROUND FOUR Improper jury instructions - believe for know [that the child was a child. ] and no instruction given on arranging for, producing, distributing, financing or possessing child pornography. (a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim): 1) using believe for know. The judge accepted the wording offered by the prosecution in spite of the proper wording on know offered by the defense in writing. The issue of the proper wording was brought up again in the closedchambers conference, and on the record prior to charging jury. 2) In addition, the statute I was convicted of reads: 2) A person who persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in a child sexually abusive activity for the purpose of producing any child sexually abusive material, or a person who arranges for, produces, makes, or finances, or a person who attempts or prepares or conspires to arrange for, produce, make, or finance any child sexually abusive activity or child sexually abusive material is guilty of a felony, punishable by imprisonment for not more than 20 years, or a fine of not more than $100,000.00, or both, if that person

11 AO 241 Page 12 knows, has reason to know, or should reasonably be expected to know that the child is a child or that the child sexually abusive material includes a child or that the depiction constituting the child sexually abusive material appears to include a child, or that person has not taken reasonable precautions to determine the age of the child. [Emphasis added] The wording believe is the proper wording for a jury instruction under MCL d, which went into effect five months after the conduct I engaged in, and applied to convictions of using a computer to commit a crime under certain statutes, including MCL c. There was no child. It was an adult police officer who solicited Defendant to meet him. This amounted to judicial re-writing of the statute to include elements of MCL a (which prohibits solicitation of minors for immoral purposes) and MCL d, which was not in effect at the time of my conduct,. and involves using a computer to commit certain crimes, including MCL c In my case, the prosecution argued to the Court of Appeals that the issue had been waived because there was no objection to it on the record. They never argued that believe that the child is a child was the same as knowing that the child is a child. The Court of appeals properly acknowledged that the defense submitted the correct jury instruction, and the issue was therefore not waived, but then equated believe and know and found the error harmless. The judge also failed to instruct the jury with any of the bolded and underlined wording below from this portion of the statute: A person who persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in a child sexually abusive activity for the purpose of producing any child sexually abusive material, or a person who arranges for, produces, makes, or finances, or a person who attempts or prepares or conspires to arrange for, produce, make, or finance any child sexually abusive activity or child sexually abusive material is guilty of a felony, punishable by imprisonment for not more than 20 years, or a fine of not more than $100,000.00, or both, if that person knows, has reason to know, or should reasonably be expected to know that the child is a child or that the child sexually abusive material includes a child or that the depiction constituting the child sexually abusive material appears to include a child, or that person has not taken reasonable precautions to determine the age of the child My ORDER REGARDING PRETRIAL RELEASE dated June 28, 2000 states that I was charged under MCL c Child Abusive Commercial Act. The Detroit News article the day following my arrest stated that I was charged with attempting to solicit. It also stated that I was charged with solicitation of a minor and solicitation on the internet Solicitation on the internet was not a separate crime until September of Appendix. 2 Note that undersigned is not contesting that it is inappropriate to advise the jury of potential sentences in jury instructions.]

12 AO 241 Page 13 Instead, the judge gave the following instructions: Child sexually abusive activity is defined as engaging a child in any of the following acts; sexual intercourse, masturbation, or sexual excitement.... For the crime of sexually abusive activity this means that the prosecution must prove that the Defendant intended to engage in sexual intercourse, masturbation, and/or sexual excitement. The Defendant's intent may be proven by what he said, what he did, how he did it or by any other facts and circumstances in evidence. Most of the wording of the statute applies to engaging in sexually abusive activity for the purpose of the production, distribution, financing, preparation or arranging sexually abusive activity for the purpose of producing sexually abusive material. The court left out the vast bulk of the wording of the statute in charging the jury. (b) If you did not exhaust your state remedies on Ground Four, explain why: - exhausted (c) Direct Appeal of Ground Four: (1) If you appealed from the judgment of conviction, did you raise this issue? O Yes No (2) If you did not raise this issue in your direct appeal, explain why: (d) Post-Conviction Proceedings: (1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a state trial court? Yes O No (2) If your answer to Question (d)(1) is Yes, state: Type of motion or petition: Name and location of the court where the motion or petition was filed: Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available): (3) Did you receive a hearing on your motion or petition? Yes No (4) Did you appeal from the denial of your motion or petition Yes No (5) If your answer to Question (d)(4) is Yes, did you raise this issue in the appeal? Yes No (6) If your answer to Question (d)(4) is Yes, state: Name and location of the court where the appeal was filed: Docket or case number (if you know): Date of the court's decision:

13 AO 241 Page 14 Result (attach a copy of the court's opinion or order, if available): (7) If your answer to Question (d)(5) is No, explain why you did not raise this issue: (e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you have used to exhaust your state remedies on Ground Four: None GROUND FIVE Ineffective assistance of trial counsel, David Fregolle, (subsequently disbarred from Michigan Bar on other grounds) (a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim): 1) Attorney Fregolle couldn't read the discovery provided by the prosecution (which consisted only of police reports and contents of my computer provided ONLY on CDrom, including the main internet conversation used as the state's primary exhibit) and used to obtain warrant to seize my computers. Furthermore, he neglected to tell me for almost two years pre-trial. Because police reports were not admitted, all of the evidence used against me was unfamiliar to Attorney Fregolle. Because of my bond condition that I not USE a computer while out on bond, I found out about this on the first day of trial (jury selection), and Attorney Fregolle, along with my chosen, but not admitted pro hac vice attorney, Paula J. Werme, and I had to work almost 20 hour days during the trial week as a result. The prosecution had to send a police officer-witness to Attorney Fregolle's office to show him how to open the records of conversations they were intending to use in trial on the night before testimony began. Because Attorney Fregolle had never seen much of the evidence, we wound up working extensive hours to prepare for each day's proceedings. One night we stayed in his office until almost 3:00 a.m. because he had not prepared. See bond conditions attached to and made a part of this pleading. Bond ORDER, June 28, ) Because Attorney Fregolle couldn't read the discovery provided by the prosecution, he failed to identify issues such as incomplete discovery - only about 6% of the hard drive of my computer was included in the discovery and there was likely exculpatory evidence on the hard drive. A smaller percentage of my laptop hard drive was provided. 3) Attorney Fregolle failed to identify that among 1532 photographs provided on the CDrom, that it was CHILD PORNOGRAPHY that was relevant to the prosecution to show intent. [Note: although 10 pictures of child pornography were found on the disk, I did not know they were there, and demonstrated to the court how people could send me files while engaged in a chat via IRC or internet chat relay, through its function of AUTOget. I was not charged with possession of child pornography, yet the photographs were shown to the jury in front of children in the court room.] Although Attorney Fregolle did properly object to the admission of the evidence under Rule 404b, the court stated on the record that if the provisions of Rule 404b were not followed, then the material should not be admissible. The court then failed to rule on the Rule 404b objection, and the material was admitted anyway. 4) Attorney Fregolle failed to research the basic case law on the statute I was convicted of, including critical case law that the purpose of the statute was to deter production, distribution, financing, and possession of child pornography. He also could or did not

14 AO 241 Page 15 make computer available for Attorney Werme to do research during trial, so I was actually prejudiced by his failure to act. 5) Attorney Fregolle didn't know how to admit Paula J. Werme, Esq. as attorney pro hac vice, and failed to move to admit her on the record when the judge said in closedchambers conference that he would not permit it, so the Attorney Fregolle did not move for it in the in the record. See Affidavit of Paula J. Werme attached to and made a part of this pleading. The Court of Appeals noted in their opinion that it is not apparent from the record that Werme ever contemplated playing a more active role at trial. 6) Could not coherently argue [Michigan Rules of Evidence] Rule 404b objection to admission of prosecution evidence not provided to defense on any other ground other than lack of notice, resulting in the admission of the evidence, even after the prosecution admitted on the record that he failed to give notice of intent to use other act evidence. Defendant's April 4, 2002 Emergency Motion for Appointed Counsel Based on Ineffective Counsel and Stay of Proceedings. (April 4, 2002 was first day of trial testimony). 7) Failure to articulate coherently why receipt of the balance of hard drive contents was extremely important to defense, resulting in denial of remedy both at trial and on appeal. Potential exculpatory evidence similar to the records of conversations provided to defense and described by the prosecution as pertinent but kept out as irrelevant hearsay. Certainly my files and other correspondence were relevant as potentially exculpatory evidence. Because of the length of time between Attorney Fregolle receiving the discovery and the trial, and because of my bond restriction that I not use a computer, I never knew that the bulk of the information on the hard drives was missing. I forgot much of the contents of the hard drive, and could not assist him in identifying specific information that might be exculpatory. 8) Failure to prevail on his attempt to submit hard copies of internet conversations that tended to be exculpatory - provided by the prosecution and characterized by them as pertinent. Transcript, April 3, 2000, p. 90. These internet conversations were of same character as the prejudicial prosecution other act evidence (internet chats with unknown persons) we attempted to keep out under MRE Rule 404B as unreliable and highly prejudicial. The prosecution kept the contents of the conversations the defense wanted to submit out as irrelevant hearsay, while their substantially similar irrelevant and unreliable hearsay was permitted to be included in the trial. The judge himself characterized this evidence as unreliable hearsay at sentencing when the prosecution attempted to increase the minimum sentence because of the contents of the internet conversations. Citing the unreliable nature of the evidence, failed to show criminal conduct, he refused to increase the minimum sentence. 9) See affidavit of Paula J. Werme, Esq. dated April 19, 2002, attached to and made a part of this pleading for additional reasons, which include failure to coherently argue entrapment defense, admission that he was ineffective, failure to read the discovery, failure to recognize what of that he could read (he could access the photographs) what was relevant to the prosecution (the child pornography), lack of trial skills, including knowing the basis for his own objections, resulting in Paula Werme actually writing him notes as he was objecting as to the proper ground. Attorney Werme went so far as to make a diagram of the most common reasons for objecting and began pointing at it so she didn't have to type the reason for objecting every time Attorney Fregolle objected. She simply pointed to the correct reason. Attorney Fregolle also, and without the knowledge of Attorney Werme, gave me the questions and expected answers as notes on the stand, resulting in

15 AO 241 Page 16 a severe admonition from the judge in front of the jury. This resulted in the prosecution calling my testimony scripted in her closing argument. Also, Attorney Fregolle's closing argument was characterized by the prosecution (and myself and Attorney Werme) 3 as ridiculous. His failed to withdraw when requested IMMEDIATELY following the verdict, and subsequent failure to prevail on post-conviction bond when he was not supposed to be representing me. 10) See my affidavit dated November 4, 2004, which additionally adds Attorney Fregolle's failure to take notes during the trial, no trial strategy, lack of attention to the trial, and insufficient grasp of the issues at trial. He additionally refused to withdraw to argue whether my motion to discharge him as his attorney should be granted, so I could not speak at that motion hearing. Note that the trial court judge sent us downstairs to argue that motion before another judge, and that transcript was never provided to the defense for appeal. After I submitted Defendant's Emergency Motion for Appointed Counsel based on Ineffective Counsel and Stay of Proceedings on April 4, 2002, before any trial testimony began, the Court never offered me the opportunity to represent myself. I was also not permitted to represent myself at the hearing downstairs before another judge to argue that motion. 11) See affidavit of Alan R. Harris November 4, 2004, Affidavit of Paula J. Werme, Esq., and letter of Paula J. Werme to Desiree Ferguson dated December 23, 2002, attached to and made a part of this petition for additional reasons. 12) Attorney Fregolle objected 79 times during trial to evidence, and was overruled 54 times out of 79. One third of the time he simply withdrew his objection because he couldn't support his objection coherently. The prosecution objected 55 times, were overruled 13 times, and 42 were sustained. Combined with the fact that Paula Werme was writing Attorney Fregolle notes and had actually composed a diagram with reasons for objecting she could point to so she could quickly point to grounds for objecting, and that Attorney Fregolle didn't always look down to see the notes, it demonstrates ineffective assistance of counsel. 13) The prosecution stated in the hallway and within earshot of defense witness that they were worried about Attorney Fregolle's stability. This was at the beginning of the second day of trial testimony after I submitted a motion entitled Defendant's Emergency Motion for Appointed Counsel Based on Ineffective Counsel and Stay of Proceedings. 14. Attorney Fregolle violated the rules of professional conduct to induce me to retain him. This was told to me by Attorney Paula Werme. I was arrested on a Friday night. On Saturday night, I requested an attorney. Attorney Fregolle appeared at the first bail hearing on Sunday morning, was given an opportunity to see me before the hearing, and stated that he was my attorney. Because I had requested an attorney, I had no reason to believe at that hearing he was not appointed by the Court. After the hearing, Attorney Fregolle stated to me that I would have to pay him. He had apparently seen a television report concerning my arrest and was ambulance chasing me as a client. He told me that he was the attorney who got Thousand off. At the time of my arrest, the case of People v.thousand, 241 Mich. App. 102, Among other things, Attorney Fregolle stated in closing You can probably go into a local adult bookstore over by Six and Telegraph and go in there and for just a few bucks buy ourself (sic) a booklet that will show children engaging in all kinds of sex acts and....

16 AO 241 Page 17 4 N.W.2d 674 (2000) had just been decided. I was arrested on May 19, Mr. Thousand was represented by Attorney Fregolle. Some of Mr. Thousand's charges had been dismissed by the Michigan Court of Appeals. His charge under MCL c, the statute under which I was charged, was NOT dismissed, however. To the extent that Attorney Fregolle represented to me that he got Thousand off, it was a gross misrepresentation with respect to the statute under which I was charged. The case was later reversed again by the Michigan Supreme Court. 65 Mich. 149, 631 N.W.2d 694 (2001), and some of the charges were reinstated. The Michigan Supreme Court in the Thousand OPINION stated that the Court of Appeals was correct in refusing to dismiss the charge under MCL c. Attorney Fregolle later articulated that he had no idea it was against the rules of professional conduct to obtain clients in that manner. He was later disbarred on two separate but unrelated grounds. See attached copy of Detroit Free Press article on my arrest that mentions the Thousand case. 15. Attorney Fregolle failed to submit a jury instruction on the wording of the statute to include arranging for, producing, distributing, financing or possessing child pornography. (b) If you did not exhaust your state remedies on Ground Five, explain why: Exhausted (c) Direct Appeal of Ground Five: (1) If you appealed from the judgment of conviction, did you raise this issue? O Yes No (2) If you did not raise this issue in your direct appeal, explain why: (d) Post-Conviction Proceedings: (1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a state trial court? Yes O No (2) If your answer to Question (d)(1) is Yes, state: Type of motion or petition: Name and location of the court where the motion or petition was filed: Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available): (3) Did you receive a hearing on your motion or petition? Yes No 4 Undersigned assumes that the prohibition for citing case law involves arguing the case law. In this case, the date of the Court of Appeals decision in Thousand it is part of the facts.

17 AO 241 Page 18 (4) Did you appeal from the denial of your motion or petition Yes No Yes (5) If your answer to Question (d)(4) is Yes, did you raise this issue in the appeal? No (6) If your answer to Question (d)(4) is Yes, state: Name and location of the court where the appeal was filed: Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available): (7) If your answer to Question (d)(5) is No, explain why you did not raise this issue: (e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you have used to exhaust your state remedies on Ground Five: GROUND SIX Ineffective assistance of appellate counsel, Desiree Ferguson, Esq. of the Michigan State Appellate Defender's Office. (a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim): 1) Despite written and oral instructions from me, she refused to move to admit Attorney Paula Werme in to the Michigan Court of Appeals as counsel pro hac vice. See attached letter dated September 9, 2002 to Mr. Norris J. Thomas, Jr. of the Michigan State Appellate Defender's Office, #4 on page 1. 2) She refused to brief numerous issues I requested her to brief. Id 3) She refused to move for a Ginther hearing to determine ineffective assistance of trial counsel in the trial court despite my insistence that she do so. See Affidavit of Alan Harris dated November 4, 2004, p. 2, 8, letter of September 8, 2002 to Norris J. Thomas, Jr. of the State Appellate Defender's Office. 4) She filed the appellate brief on April 3, 2003 instead of its due date of April 1, 2003, losing my opportunity for oral argument on the first appeal of right. 5) With respect to the issues I asked her to brief in the appeals brief, she instead told me to file a Standard 11" brief in propria persona because the issues she briefed were slamdunk.

18 AO 241 Page 19 6) Despite evidence submitted to her from Attorney Paula Werme that the prosecutor knew that on the date of my conduct, it was not illegal - the articles concerning the effective date of MCL d in September of five months after my conduct - she gave the issue little space in her brief to the Michigan Court of appeals. SADO Brief, pp See letter of Paula J. Werme to Desiree Ferguson December 23, ) The case of People v. Fett, 257 Mich. App. 76, 666 N.W.2d 676 (2003) was decided in the Michigan Court of Appeals following submission of Attorney Ferguson's brief. It involved the right to have counsel pro hac vice and the Court of Appeals vacated the 5 verdict because the court arbitrarily denied Mr. Fett's counsel of choice. Attorney Ferguson refused to submit a supplemental brief based on the Fett decision. She told me to write the supplemental brief myself and send it to her for submission to the court. I wrote a four page brief, which she submitted to the court of appeals unchanged. The Court of Appeals then rejected my supplemental brief in its entirety because it was over the one page supplemental brief permitted by rule. Attorney Ferguson could have rewritten my brief to conform to the court rule, but she chose not to. 8) She failed to brief the issue of no jury instruction on the actual wording of the statute concerning for the purpose of producing any child sexually abusive material, or a person who arranges for, produces, makes, or finances, or a person who attempts or prepares or conspires to arrange for, produce, make, or finance any child sexually abusive material. (b) If you did not exhaust your state remedies on Ground Six, explain why: (c) Direct Appeal of Ground Six: (1) If you appealed from the judgment of conviction, did you raise this issue? O Yes No (2) If you did not raise this issue in your direct appeal, explain why: space considerations (d) Post-Conviction Proceedings: (1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a state trial court? Yes O No (2) If your answer to Question (d)(1) is Yes, state: Type of motion or petition: 5 The decision was later reversed again by the Michigan Supreme Court, but a recent United States Supreme Court opinion effectively overturned the Michigan Supreme Court OPINION in Fett by affirming the right to counsel of choice pro hac vice.

19 AO 241 Page 20 Name and location of the court where the motion or petition was filed: Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available): (3) Did you receive a hearing on your motion or petition? Yes No (4) Did you appeal from the denial of your motion or petition Yes No Yes (5) If your answer to Question (d)(4) is Yes, did you raise this issue in the appeal? No (6) If your answer to Question (d)(4) is Yes, state: Name and location of the court where the appeal was filed: Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available): (7) If your answer to Question (d)(5) is No, explain why you did not raise this issue: (e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you have used to exhaust your state remedies on Ground Six: GROUND SEVEN Prosecutorial misconduct (a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim): (1) Overcharging the crime alleged. At the time of my conduct, it was a misdemeanor to solicit an underage child for purposes of sexual activity under MCL a. That statute required the existence of an actual child, however, as per Michigan case law. In any case, the detective at the other end solicited the conduct of me - he asked me to meet him at McDonald's restaurant. In September of 2000, a new section of MCL became effective, section (d). It criminalized use of a computer to attempt certain crimes including contact via the internet as an offense with the same penalty as MCL a or other underlying crime. Detroit News Article, Law Targets computers of child predators, Sept. 20, It also made those attempts punishable by the same sentence as if the crime had occurred face to face, and even if the person on the other end of the internet chat was a police officer. At the same time and in the same session law, the legislature also increased the penalty for the misdemeanor charge of soliciting a minor for sexual contact under MCL a to a four year felony. I was prosecuted by the Wayne County Sheriff's department, who had the state's first internet crime unit. In a subsequent case prosecuted by the Wayne County sheriff's

20 AO 241 Page 21 department and appealed to the Court of Appeals, the state acknowledged that the purpose of MCL was to stop the production, distribution, and possession of child pornography. The Wayne County Sheriff's department knew that it was not a crime if a police officer posed as an officer at the time of my conduct, as evidenced by the attached article in the Detroit News September 20, They knew the purpose of the statute after they prosecuted me, as shown by case law involving their internet crimes unit where they charged someone with a violation of MCL d for arranging sex with a 6 minor via the internet My own conduct was agreeing to meet a police officer posing as a minor at McDonald's, and I only stated that I might do something that involved sexual excitement - I did NOT state that it was for the purpose of having sex with the alleged minor; I did not solicit the meeting myself for purposes of having sex, or even promise to have sex despite repeated solicitations from the officer. It was only after Wayne County Sheriff's department decided to set up an internet crimes unit without any specific statute prohibiting solicitation by a police officer posing as a child that they attempted to use a 20 year felony for prosecuting what was at most, and then only if there had been a real child, a misdemeanor. The Detroit News article of 7 September 20, 2000 states that Lawyers, teacher, an airline pilot and others were arrested in stings. In all, 25 people have been charged with solicitation... The statute that permits prosecution of solicitation over the internet with a police officer posing as a child was MCL d, which took effect five months after my conduct. The statute that prohibited solicitation of a minor for sexual conduct at the time of my conduct was a misdemeanor. MCL a. The crime for which I was charged involves intent to arrange for, produce, distribute, finance, or possess child pornography, none of which was alleged in my case. (2) MRE Rule 404b prosecution failure to advise prior to trial intent to use other act evidence - internet conversations which were non-confrontational hearsay and pictures. Had they given Attorney Fregolle notice of intent to use other act evidence, it is possible that he may not have been incompetent in arguing that the material should be kept out. Had they given him the other act evidence in the form of paper, it would have been very easy to determine that some the evidence was corrupted because it had been deleted from my computer. This could have been used in cross-examining Detective Roscoe at a minimum, that the actual evidence collected tended to show that, contrary to his affidavit, I didn't save photographs or conversations, and nothing else was found in my home as per the affidavit. Since he stated under oath in his search warrant that he had LEARNED that pedophiles engaged in saving of this type of information, he would have had to admit that I didn't fit the profile of a pedophile based on the results of evidence seized. Not having the entire contents of the hard drive precluded this defense. (3) Inadequate discovery and in inadequate form (CD rom of evidence obtained from my 6 See People v. Cervi, Mich.App It mentions Sheriff's Deputy Norman Gibson in the first paragraph of the Facts section. Deputy Gibson works for the Wayne County Sheriff's department, and was a witness in my case and the person who decided what was pertinent. 7 I am not, nor was I ever, an airline pilot. I was a helicopter pilot working for a private company at the time of my arrest. No other pilot was arrested for violating MCL c to my knowledge, so I believe the airline pilot refers to me. The Wayne County Sheriff's Department web site refers to my arrest with the headline Pilot Gets Charged. It linked to the Detroit News article on my arrest.

21 AO 241 Page 22 computer v. paper copies of intended evidence from hard drive used as evidence at trial) Pertinent discovery was determined by a computer technician police officer, not by prosecutor, not by defense attorney, and not by judge. Also, the computer hard drive was approximately 4 GB memory. My attorney was given discovery of approx, 260 MG or 8 about 6% of the hard drive contents. 8 As per the affidavit of Detective Roscoe Jackson in support of the search warrant to search my home: the personality of persons with inclination toward sexual activity with minors and child pornography.... [includes] receiv[ing] sexual gratification and satisfaction from actual physical contact with children and from fantasy involving use of pictures[.]... These people collect sexually explicit materials consisting of photos, magazines, motion pictures, video tapes, books and slides depicting juveniles, that they use for their own sexual gratification. These people rare dispose/destroy correspondence received from other people with similar interests unless they are specifically requested to do so. These people use such photo and videotapes as described above as a means of reliving the fantasies or actual encounters with the depicted children. They also use the photos as keepsakes and as a means of gaining acceptance, status, trust, and psychological support by exchanging, trading or selling them to other people with similar interests. These photos are kept and carried by these people as a constant threat to the child of blackmail and exposure... Those people who are afraid of discovery often maintain their own photographic production and reproduction equipment. This may be as simple as the use of an instant Photo equipment, such a a Polaroid, cameras, video equipment or as complex as completely outfitted photo labs. These people often collect, read, copy or maintain names, addresses, phone numbers or lists of persons who have similar sexual interest. They may have been collected by personal contact or through advertisements in various publication... Vast quantities of child pornography may be also stored on electronic media such as computer hard drives, computer diskettes, magnetic or digital tape and computer CD_ROM disks....these people obtain, collect, and maintain photographs of the children they are or have been involved with... these photos are rarely, if ever disposed of and are revered with such devotion that they are kept upon the individual's person in wallets and such. All the materials requested for seizure will identify children who are being sexually exploited through child molestation and child pornography. The materials will also identify other adults who are engaging in the sexual exploitation of children by these means. In addition, the materials will demonstrate sexually proclivity, inclination, preference and activities of the person under investigation providing evidence that will tend to show that the person under investigation has violated Michigan State laws with respect to engaging in child sexually abusive activity and possible distribution of child pornography. The affidavit goes on to discuss many items never found in my home as being related to seduction of children, such as books, magazines, newspapers, toys,