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Steven J. Bank
5112 Mountain View Dr.
Las Vegas, NV 89146
Tel 702-340-6548 (cell)
Email: [email protected]
IN PRO SE
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8 TH JUDICIAL DISTRICT COURT
CLARK COUNTY, NEVADA
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STEVEN J. BANK,
PETITIONER,
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vs.
STATE OF NEVADA
RESPONDENT.
) CASE NO. __C-16-313898
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) DEPT. NO . ________2______
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) (Related case no: C-14-302181-1)
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) AMENDED PETITION FOR
) OF ERROR CORAM
) NOBIS;EXPUNGEMENT
WRIT
Under the All Writs Act
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NATURE OF THE ACTION
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Pursuant to the Nevada Constitution, Article 6, section 6(1), Petitioner Steven J.
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Bank (Petitioner or BANK) hereby petitions and moves for a writ of coram nobis to
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vacate Petitioners conviction to correct an error of the most fundamental character
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and prevent a manifest injustice from occurring. Per Nevadas Justice Douglas:
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We hold that the common-law writ of coram nobis is available under Article 6, Section 6(1) of the
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Nevada Constitution, which grants district courts the power to issue writs that are proper and necessary
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to the 'complete exercise of their jurisdiction, and NRS 1.030, which continues the common law under
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some circumstances. FROM Trujillo v. Nevada, Supreme Court No. 58937 (adv. Opinion), 2013.
PETITION FOR CORAM NOBIS - 1
SENTENCING
After serving a sentence of 313 days in the Clark Co. Detention Center, BANK
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stands convicted of an act that has no substantive support in the case file; No physical
evidence including forensic evidence- was retained by the Police. Under the tenets of
Supreme Court case Arizona v. Youngblood, 488 U.S. 51 (1988), a bad faith showing
on the part of the Police is sufficient to cast doubt on the prosecution. From footnote
7,
There is no need in this case to discuss whether the police have a duty to test evidence, or whether due
process requires that police testing be on the "cutting edge" of technology. But uncertainty as to these
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questions only highlights the importance of preserving evidence, so that the defense has the
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opportunity at least to use whatever scientifically recognized tests are available. That is all that is at
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issue in this case.,Id, Footnote 7.
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Thus, a jurisprudent judicial officer who was truly independent would never have
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allowed such an unsubstantiated allegation to move forward, especially given the
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availability of Brady Material.
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In addition, BANK seeks expungement of the conviction pursuant to 18 U.S.C.
3231.
Petitioner has attempted to correct the error by contacting the Districts Attorney via
E-mail, to no avail. See EXHIBIT 1, Email to Ms. Noreen Demonte.
BANK faces adverse consequences as a result of the defective conviction; Prior to
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sentencing, he sought, by all available means, to SET ASIDE the GUILTY PLEA
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AGREEMENT, to no avail. At sentencing, he requested that the Court entertain a
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PETITION FOR RECONSIDERATION, also to no avail; Had sentencing not gone
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forward on the 24th of March, 2016, BANK would likely have been held in
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contempt, only to restart the proceeding 30 days later. Simply put, BANK had no
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choice in the matter but to be sentenced.
PETITION FOR CORAM NOBIS - 2
Despite manifold cases in both State and Federal (below) allowing for a plea
withdrawals (setting aside plea agreement) prior to sentencing, the judge denied his
requests (although no prejudice would have resulted to the prosecution in this
particular instance)
There are errors of fact outside the record which could not have been raised earlier
than this instant matter, although an attempt was made at rendition of sentence when
the PSI was being challenged. Thus, the sentence and conviction is fundamentally
erroneous. EXHIBIT 2.
JURISDICTION
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This Court has subject matter jurisdiction over this proceeding under under Article 6,
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Section 6(1) of the Nevada Constitution, and NRS 1.030.
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UNDISUPTED FACTS
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2015
GUILTY PLEA AGREEMENT FOR ATTEMPTED
BURGLARY
1.BANK
was charged with one count of Attempted Burglary, a Class C Felony
on October 15th, 2014.
2. The Hon. Janiece Marshall, Las Vegas Justice Court J.O.P. Dept. 3,
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departed upwards when setting bail based on BANKs numerous arrests and
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charges in the State. (EXHIBIT 3) However, she failed to understand the
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outcome (disposition) of the various cases. (EXHIBIT 4 and 5).
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Thus, rather than grant an instant O.R. based on his successful defense of
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over 12 criminal cases in this State, she presumed he had been convicted on
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all. [Further; Note: the pre-trial services investigation contained a plain error, a
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fact which she overlooked in spite of BANKs manifold filings challenging said
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(erroneous) conviction. The case in question is a CA Battery, 1999. (See exhibit
PETITION FOR CORAM NOBIS - 3
5): PRE-TRIAL services stated: F Batt PO 1999, as the disposition; the true
disposition is as stated in the PSI report, a M, with 193 days credit, etc).
3 . BANK entered into a Guilty Plea Agreement on April 27th, 2015. In
exchange for the Guilty Plea, the government agreed not to oppose an Own
Recognizance release.
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4. The stipulated factual basis for his conviction of Attempted Burglary is as
follows:
a. BANK entered into a garage at 1304 Montclair St. (Charleston Heights
neighborhood), and was subsequently held down [no mention of Battery] by
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two residents until Police arrived. These two residents stated that he moved a
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washing machine towards the door, attempting to steal it. Police canvassed
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the area, found nothing, and charged him with Attempted Burglary for
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attempting a Grand Larceny, basing their Declaration of Arrest on hearsay, i.e.,
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the witness statements alone. No evidence was retained by Police. Youngblood,
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supra.
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b. At sentencing, BANK attempted to correct errors in the record, stating
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[Deft.] stated the synopsis in the report is inaccurate, as it should read the boyfriend was
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beating the suspect, and blood was everywhere (minutes of March 24th, 2016).
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5. On March 24th, 2016, the Court sentenced BANK to 313 days in the Clark Co.
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Detention Center, suspending the sentence, as well as an 18 month supervised
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release.
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ARGUMENT
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A. LEGAL STANDARD
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The Ninth Circuit has recognized that petitions for coram nobis under the All Writs Act
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may provide relief for persons who have grounds to challenge the validity of their
PETITION FOR CORAM NOBIS - 4
conviction but are not eligible for habeas relief under 28 U.S.C. 2255Matus-Leva v.
U.S. , 287 F. 3d 758, 760 (9TH Cir. 2002). The coram nobis writ allows a court to vacate
a conviction where the petitioner establishes that : (1) a more usual remedy is not
available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse
consequences exist from the conviction sufficient to satisfy the case or controversy
requirement of Article III; and (4) the error is fundamental in character. Id.
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1.
A MORE USUAL REMEDY IS NOT AVAILABLE BECAUSE THE
SENTENCING JUDGE WILL BE HEARING IT.
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BANKs submission of a Post-Conviction Habeas Corpus Petition will reach Dept. 12.
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Unquestionably, Judge LEAVITT will not grant the Writ, not willing to overturn her
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own judgment.
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2.VALID REASON EXISTS WHY PETITIONER COULD NOT MAKE
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AN EARLIER CHALLENGE TO THE CONSTITUTIONALITY OF HIS
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CONVICTION, INASMUCH AS HE WAS COERCED INTO ENTERING
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HIS CULPABILITY IN ORDER TO RETURN TO LIBERTY.
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from WIKIPEDIA, COERCION:
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Coercion /korn/ is the practice of forcing another party to act in an
involuntary manner by use of intimidation or threats or some other form of
pressure or force.[1] It involves a set of various types of forceful actions that violate
the free will of an individual to induce a desired response.
(https://en.wikipedia.org/wiki/Coercion) (emphasis added)
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It became clear, on every single court date that BANK appeared in Dept. 3, that
J. Marshall was only concerned with one outcome: a bindover. EXHIBIT 7,
Petitioners AFFIDAVIT IN SUPPORT.
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PETITION FOR CORAM NOBIS - 5
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3.PETITIONER BANK CONTINUES TO SUFFER ADVERSE CONSEQUENCES
FROM HIS CONVICTION INCLUDING BUT NOT LIMITED TO FINDING WORK;
ALSO, HIS REPUTATION HAS BEEN IRREPARABLY DAMAGED.
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BANK obtained an HONORS DIPLOMA from MICDS, St. Louis, MO, in
1989, and was subsequently enrolled at Stanford University beginning in 1989,
where he declared Religious Studies and Classics. He then transferred to San Jose
State University in 1995 to study music with the countrys then foremost
percussion pedagogue, Anthony J. Cirone, a pupil of renowned timpani master
Saul Goodman of the Philadelphia Symphony. He then studied Music Theory
privately in Berkeley, CA between the years 2002-2006. His re-issues and re-
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masters of rock and roll music can be heard in every classic rock station across
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the U.S.A.
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Prior to receiving his six-figure inheritance and purchasing a flat in San Jose ,
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CA in 1998, (said loan having been paid back in full) , he never had a serious
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incident or criminal complaint filed against him. The subsequent malicious
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prosecutions, events which forced him to begin to read and study law, have
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created great financial hardship for him.
In addition, BANK has lost the right to own a firearm as a direct consequence of
this wrongful conviction, being a member of the NATIONAL RIFLE ASSOCIATION.
[Gun Home Safety Course; Medford, OR. 2008].
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4.THE
ERROR OF BANK BEING CONVICTED AND PUNISHED
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FOR AN ACT THAT THE LAW DOES NOT MAKE CRIMINAL IS
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FUNDAMENTAL.
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The error in BANKs case is of the most fundamental character. AS the U.S.
Supreme Court stated emphatically in Bousley v. United States, a conviction and
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PETITION FOR CORAM NOBIS - 6
punishmentfor an act that the law does not make criminalresults in a
complete miscarriage of justice. 523 U.S. 614, 620-21 (1998).1
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5. MR. BANK IS ENTITLED TO HAVE HIS CASE REVIEWED FOR
THE MOST FUNDAMENTAL ERRORS.
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Mr. Banks conviction is one of those cases where the errors were of the
most fundamental character that is, such as rendered the proceeding itself
irregular and invalid. United States v. Mayer, 235 U.S. 55, 69 (1914). United
States v. Morgan, 346 U.S. 502, 512 (1954). To be prosecuted for offense
conduct that is not criminal is such an error, and may be addressed with this
Court issuing a writ of coram nobis vacating the conviction
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Other events exist in the Courts proceedings, such as Hearing of a Motion
without any submissions (Replies or Rebuttals) by counsel-of-record, or, with
BANK absent, having therefore no Oral Argument whatsoever because attorney
John P. Parris was out of the jurisdiction for an extended period of time ( and
substitute counsel Matsuda was in no way informed what the issues being
raised were, at Oral Argument! Its no wonder that the MOTION TO SET ASIDE
GUILTY PLEA (which was constructively filed in PRO SE), was unequivocally
denied by the sentencing judge.)
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B. VACATING HIS CONVICTION IS NOT A BREACH OF MR.
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BANKS DUTIES AND RESPONSIBILITIES IN ANSWERING
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THE CRIMINAL CHARGES.
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To pursue the defaulted claim in habeas, he must first demonstrate either "cause and actual
prejudice," e. g., Murray v. Carrier, 477 U. S. 478, 489, or that he is "actually innocent," id., at 496.
PETITION FOR CORAM NOBIS - 7
i. WITHDRAWAL OF GUILTY PLEA STANDARD PURSUANT TO NRS
176.195 and Woods v. State, 114 Nev. 468, 475 (1998).
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Nevada Law grants a Defendant the right to withdraw a plea of guilty so long as
the request to do so is made before a sentence is imposed. NRS 176.195. The
decision to allow a Defendant to withdraw his guilty plea is within the
discretion of the District Court. State v. Adams, 94 Nev. 503, 505 (1978);
United States v. Alber, 56 F.3d 1106, 1111 (9th Cir. 1995). The Court may
grant a motion to withdraw a guilty plea prior to sentencing for any
substantial, fair, or just reason. Woods v. State, 114 Nev. 468, 475 (1998);
United States v. Ruiz, 257 F.3d 1030, 1031 (9th Cir. 2001) (en banc). Courts
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consider the "totality of the circumstances" in determining whether
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withdrawing a plea would be "fair and just." (Stevenson v. State, 131 Nev. Adv.
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61, 2015)
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Defendant BANK had spent a county year in jail awaiting a fair Preliminary
Hearing and/or subsequent Trial on charges he vehemently denied from the
outset. This uncompromising denial of the allegations as charged by the
District Attorney was ongoing for six months; When it became clear that
another six months in custody were pending if BANK were to keep proclaiming
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his innocence, the entry of a mea culpa to secure liberty and attend to urgent
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legal matters seemed like a necessary price to pay.
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BANK was aware all along that, prior to sentencing, the setting aside of a
Guilty Plea Agreement, in cases carrying no prejudice to the prosecution, was
available as a presupposed remedy, based on extensive case law granting said
plea withdrawals.
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Given his indigent circumstances, and the Historic cases granting criminal
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defendants various inalienable rights per the Constitutions 4th, 5th, and 6th
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Amendments- since the 20th Century, a trial where BANK could issue
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subpoenas, depose so-called witnesses, request evidence (discovery) by way of
PETITION FOR CORAM NOBIS - 8
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experts, marshall facts (if necessary), and perform comprehensive legal
analysis, setting aside the G.P.A. and setting a trial date would seem to be fair
and just.
Furthermore, several times, J. Marshall claimed that BANK made
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admissions. In practice, BANK has no authority to make any such
admissions; Admitting evidence is strictly the Courts prerogative.
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Bank never admitted to anything in the official documents; His efforts were
always to present facts not in the record.
Further, BRADY MATERIAL is extant, but unreviewed and, therefore,
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unknown as to its probative (or exculpatory) value!2
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C. EXPUNGMENT.
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After a conviction is invalidated, district courts possess ancillary
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jurisdiction to expunge criminal record. That jurisdiction flows out of the
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congressional grant of jurisdiction to hear cases involving offenses against the
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United States pursuant to 18 U.S.C. , sec. 3231. U.S. v. Sumner, 226 F. 3d
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1005, 1014 (9th cir. 2000).
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Here, in the event the Court grants this petition and invalidates the
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conviction, petitioner respectfully requests that this Court order the record of
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the conviction expunged and sealed. Accordingly, petitioner has demonstrated
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appropriate, extraordinary and unusual circumstances sufficient to warrant
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the relief of expungement.
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These exculpatory images are available in a compact disk; the true contents
bear no resemblance to the actual allegations contained in the Police report.
They will show that no damage to any door was present, and that the
washer/dryer was never moved. Furthermore, there will be no images of any
gun, caulking or otherwise; They will show, however, blood on the floor of
the garage.
PETITION FOR CORAM NOBIS - 9
RELIEF SOUGHT
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Petitioner respectfully requests that the Court grant the instant petition and issue
an order:
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Vacating and setting aside petitioners 2015 conviction for Attempted Burglary , in
its entirety.
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i.
and
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Expunging and sealing all records of the foregoing arrest, and conviction;
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Granting such other and further relief as the Court may deem just,
equitable and proper.
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CONCLUSION
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For all the above reasons, it is respectfully submitted that the court has a
rare opportunity to correct miscarriage of justice; Mr. Bank stands convicted of
simply walking onto the premises, and act that the law does not make
criminal. We respectfully ask the court to vacate and set aside Mr. Banks
conviction for Attempted Burglary, and expunge and seal records of the
foregoing arrest, and conviction.
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Dated this 5th day of May, 2016.
RESPECTFULLY SUBMITTED
STEVEN J. BANK
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_______________________
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By: Steven J. Bank IN PRO SE
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(address as above)
VERIFICATION
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PETITION FOR CORAM NOBIS - 10
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STATE OF NEVADA}
COUNTY OF CLARK}
S.S.
The Petitioner named in the foregoing Petition for
Writ of Error being duly swron, says the facts and
allegations contained therein are true, except so far
as they are stated to be on information, and that he
believes them to be true.
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_________________________________
Petitioner Steven J. Bank
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(signature)
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Per NRS 53.045:I declare under penalty of perjury of
the laws of the state of Nevada the above to be true
and correct.
________________ ____________________ ______________
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PETITION FOR CORAM NOBIS - 11
