Frander Salguero v. Court of Appeal of California, Second Appellate District, et al.

Habeas is an incompetent remedy to compel official action since “the only remedy that can be granted on habeas is some form of discharge from custody.” (Fay v. Noia, 372 U.S. 391, 428, fn.38 (1963)) The sole remedial vehicle to compel compliance with an official duty has consistently been mandamus. Given that the false appearance of evidence— false evidence—completely undermines the American criminal justice system, this Court contemptuously rejects it, holding such convictions “must fall under the Fourteenth Amendment” and obliging a ‘“respons­ ibility and duty to correct what [the prosecutor] knows to be false and elicit the truth”’ (Napue v. Illinois, 360 U.S. 264, 269-70 (1959)). However, certain critical details still require attention. Especially as the circuits are split 5 to 6, the majority are allowing convictions on proven govern­ ment known perjury to stand—over 30 cases from all circuits prove this split, 20 are within the past 5 years. The questions presented are:

1. Whether habeas is the sole remedy or remedy by mandamus is a permissible means to effec­ tuate the constitutional duty to correct false evidence when a prosecutor refuses to perform.

2. Whether false evidence is structural error or some prejudice test must be employed to ascertain an acceptable amount of perjury.