IN THE SUPERIOR COURT OF ARIZONA IN AND FOR THE COUNTY OF YAVAPAI STATE OF ARIZONA, Plaintiff, vs. HOWARD KEITH HENSON, Defendant. Case No. PJC 2006 04957J PETITION FOR A WRIT OF HABEAS CORPUS (A.R.S. § 13­3850) (Oral Argument Requested) Defendant, HOWARD KEITH HENSON, by and through undersigned counsel, hereby asks that a writ of Habeas Corpus issue and he be discharged, as the warrant on extradition and accompanying documents establish that he cannot be the fugitive sought. ON HABEAS AND EXTRADITIONS A governor's warrant of extradition is not final and conclusive, and the accused is entitled to question the sufficiency of the requisition in a habeas corpus proceeding. Ex parte Rubens (Rubens v. Boies), 73 Ariz. 101, 238 P.2d 402 (1951), certiorari denied 344 U.S. 840, 73 S.Ct. 50, 97 L.Ed. 653. The reviewing court is duty­bound to review the extradition request for want of jurisdiction. Id., see also Applications of Oppenheimer, 95 Ariz. 292, 389 P.2d 696 (1964), certiorari denied 84 S.Ct. 1359, 377 U.S. 948, 12 L.Ed.2d 311. Michael Kielsky, SBN #021864 4802 E. Ray Rd., #23­255 Phoenix, AZ 85044 TEL (800) 352­3311 FAX (602) 532­7777 Michael@Kielsky.com Attorney for Defendant [page break] In a habeas corpus proceeding challenging extradition, the warrant on extradition and accompanying documents filed in the office of the Secretary of State are the proper subject of judicial notice. State v. Flowers, 9 Ariz.App. 440, 453 P.2d 536 (1969); Oppenheimer, supra. Defendant Howard Keith Henson asks that this Court take judicial notice of the warrant on extradition and accompanying documents, filed in this matter in the office of the Secretary of State on or about April 10, 2007, and that a review of said documents will establish that he is not the individual sought as a fugitive. For the purpose of this petition and the convenience of the Court, Defendant is attaching copies of the relevant pages from the warrant on extradition and accompanying documents, as provided to him by the Yavapai County Attorney. IDENTIFICATION OF FUGITIVE With few exceptions (as detailed further), the fugitive sought in the Riverside County, California matter, Case No. HEM014371, is consistently identified as ``Keith Henson'', including in the ``Factual Summary'' of March 23, 2007 prepared by the Riverside District Attorney's Office (Exhibit 1), in the ``Application for Requisition'' of March 23, 2007 prepared and sworn to by a Riverside District Attorney (Exhibit 2), in the Riverside District Attorney's Office affidavit of March 8, 2007 (Exhibit 3), on each of the 31 pages of the sealed and certified records from the Superior Court of California, County of Riverside (Exhibit 4), and in the February 22, 2007 letter from the Riverside County Sheriff (Exhibit 5). Importantly, in Exhibit 2, a Riverside District Attorney states under oath that the fugitive's true name is ``Keith Henson''. Most critical, the sealed and certified records from the Superior Court of California, County of Riverside, document that the fugitive ``Keith Henson'', was arrested on felony charges of ``Criminal Threats'', a violation of California Penal Code § 422, on July 19, 2000, by the Riverside County Sheriff's Office. (Exhibit 4). The fact of the arrest is found on the [page break] first page of the sealed and certified docket report, and repeated at the top of each of 26 pages thereof. (Id.). In a motion to the Prescott Justice Court filed February 27, 2007, Defendant brought some of these discrepancies to light. Only thereafter do the acts of the Governor's of Arizona and California list the name of the fugitive as ``Keith Henson aka Howard Keith Henson'', while the remaining supporting documents and the records of the Riverside District Attorney continue to list the fugitive as ``Keith Henson''. IDENTIFICATION OF DEFENDANT Defendant acknowledges and agrees that his true and full name, ``Howard Keith Henson'', is reflected in the caption of the instant matter, and that he is so listed and depicted in the 1997 California driving license extract attached to the February 22, 2007 letter from the Riverside County Sheriff in Exhibit 5. In that letter to the Yavapai County Attorney, the Riverside Sheriff admits that the Defendant identified in that attachment, ``has never been arrested by our agency''. ARGUMENT The warrant on extradition and accompanying documents filed in the office of the Secretary of State, specifically the sealed and certified records of the Superior Court of California, County of Riverside, document that the fugitive ``Keith Henson'' was arrested on felony charges of ``Criminal Threats'' on July 19, 2000, by the Riverside County Sheriff's Office. Additionally, a Riverside District Attorney states under oath that ``the full name of the person for whom requisition is asked is Keith Henson.'' The Riverside County Sheriff acknowledges that the Defendant in the instant matter has never been arrested by them, and his true and full name is ``Howard Keith Henson''. A.R.S. § 13­3845 (B) requires that the executive authority making the demand include a photograph or fingerprint to identify the accused as the fugitive sought. The California Department of Motor Vehicles extract from Defendant's 1997 driving license record fails to suffice as there is no nexus between that extract from 1997 and the California criminal [page break] matter from 2001, and since it also fails a best evidence test. As the booking record (photograph and fingerprints) from the July 19, 2000 arrest would satisfy both the nexus and the best evidence shortcomings, the omission of that record would appear to be meaningful and significant. Since Defendant Howard Keith Henson has never been arrested by the Riverside County Sheriff's Office, as acknowledged by that agency, and the sealed and certified records of the Riverside County Superior Court document that the fugitive was arrested by the Riverside County Sheriff's Office on July 19, 2000 on felony charges, the inescapable conclusion is that Howard Keith Henson cannot be the same individual sought by Riverside County authorities. RELIEF REQUESTED In light of the documentary evidence, which upon review, must lead to the conclusion that this Defendant cannot be the same individual sought in the Riverside County, California matter, Defendant asks that he be granted a writ of habeas corpus, and be discharged from this matter, and that this case be dismissed with prejudice. Defendant further requests a finding that he is not a fugitive, as there remains significant risk that he may again be confused with the fugitive in the California matter. Defendant further requests this court fashion a protective order directing the Yavapai County Sheriff's Office to correct or annotate the NCIC record in this matter, in conformance with these findings. The NCIC record contains serious errors, including the confusion over the identities of Defendant and fugitive, and listing the outstanding charges as felonies and terrorist threats, while the certified court record indicates that no felony charges were ever filed (Exhibit 2 at pp. 9­13), and conviction was upon a sole misdemeanor count (Id. at pp. 19­20). Should another law enforcement agency confuse the Defendant with the fugitive, the matter should be resolved under misdemeanor circumstances, not felony fugitive status. RESPECTFULLY SUBMITTED this 14th day of May, 2007. [page break] BY: ______________________________ Michael Kielsky Attorney for Defendant [page break] CERTIFICATE OF SERVICE On May 14, 2007: I served the foregoing document on the below listed parties to this action, by depositing a true and correct copy thereof, enclosed in a sealed envelope with postage thereon fully prepaid, with the United States Post Office, addressed as set forth below: Cynthia Spitler or Jennifer Campbell Yavapai County Attorney's Office 255 East Gurley Street Prescott, AZ 86301 Attorneys for Plaintiff BY: _______________________________ Michael Kielsky On May 14, 2007: I served the foregoing document on the Court, by personally delivering a true and correct copy thereof, addressed as set forth below: Superior Court of Arizona County of Yavapai Division 6 120 South Cortez Street Prescott, AZ 86303 BY: _______________________________ [page break] Exhibit 1 [page break] Exhibit 2 [page break] Exhibit 3 [page break] Exhibit 4 [page break] Exhibit 5 [page break]