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IN THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

______________________

IN RE STELLA MAUDINE NICKELL,

Petitioner

______________________

MOTION FOR AUTHORIZATION TO FILE

A SUCCESSIVE PETITION UNDER 28 U.S.C. §2255

WITH THE WESTERN DISTRICT OF WASHINGTON AND IN THE ALTERNATIVE MOTION FOR THIS COURT TO TRANSFER THIS PETITION

FOR CONSIDERATION UNDER PRE-AEDPA STANDARDS

______________________

WITH THE WESTERN DISTRICT OF WASHINGTON AND IN THE ALTERNATIVE MOTION FOR THIS COURT TO TRANSFER THIS PETITION FOR CONSIDERATION UNDER PRE-AEDPA STANDARDS

STELLA MAUDINE NICKELL, (hereinafter “Petitioner”) pursuant to 28 U.S.C. §2244 and 28 U.S.C. §2255, respectfully requests that this Court provide her with authorization to file a successive petition with the Western District of Washington. The document Petitioner would file with the Western District, should this Court grant authorization, is attached to this motion. In the alternative, Petitioner respectfully requests that this Court transmit this petition to the Western District of Washington for consideration under pre-AEDPA standards.

A. WHY PETITIONER SHOULD BE ALLOWED TO FILE A SUCCESSIVE PETITION, OR IN THE ALTERNATIVE, WHY PETITIONER’S PETITION SHOULD BE ACCEPTED AND REVIEWED UNDER PRE-AEDPA STANDARDS 13

B. HOW PETITIONER MEETS CURRENT STANDARD FOR AUTHORIZATION TO FILE SUCCESSIVE PETITION 14

C. PRE-AEDPA STANDARDS SHOULD APPLY AND GATEKEEPING ROLE SHOULD BE INAPPLICABLE TO PETITIONER’S CASE 17

B. PETITIONER’S POSSESSION OF TWO BOTTLES OF TAINTED MERCHANDISE PURCHASED AT TWO SEPARATE STORES 28

H. NEW INFORMATION REGARDING PETITIONER’S POLYGRAPH AND ITS IMPORTANCE VIS A VIS DAMAGING TESTIMONY OF BACA 51

Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) 17

This Court has jurisdiction in this matter as a court of appeals pursuant to 28 U.S.C. §§2244 and 2255. This Court is the proper Court of Appeals as Petitioner was convicted in the Western District of Washington, within the territory covered by this Circuit Court.

Should this Court determine that pre-AEDPA standards should apply to this petition, the Western District of Washington would have jurisdiction over the matter.

Petitioner was convicted on May 9, 1988 of five counts of product tampering in violation of 18 U.S.C. §1365. She was pronounced guilty five days after her case was presented to the jury. Upon the jury’s verdict she was sentenced to a total of 210 years in prison. Petitioner is incarcerated at the Federal Correctional Institute located at Dublin, California. She will not be eligible for early release until 2017.

Petitioner filed a timely appeal of her conviction, which led to the reported decision of this Court, United States v. Nickell, 883 F.2d 824 (9th Cir. 1989), wherein this Court affirmed Petitioner’s convictions, Id. at 829.

Petitioner filed a previous petition challenging her incarceration pursuant to 28 U.S.C. §2255 with the Western District of Washington on or about April 16, 1997 (the “Prior Petition”). The Prior Petition was submitted before the strictures of the Anti-terrorism and Effective Death Penalty Act of 1996 (hereafter “AEDPA or 1996 AEDPA”) were applicable to Petitioner.

The Prior Petition asserted several claims that were held to have been previously raised on direct appeal, and a new claim that her trial defense team provided ineffective assistance by failing to question, and later call at trial, a certain individual who was asserted to have had information that may have exonerated Ms. Nickell. The relief requested in the Prior Petition was denied by the Western District of Washington on November 21, 1997.

Has new evidence been uncovered in Petitioner’s case that if proven, and considered in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable fact finder would have found Petitioner guilty of the offenses for which she was convicted? 28 U.S.C. §2255.

In the alternative, based on the specific circumstances surrounding Petitioner’s incarceration, should this motion be transmitted by this Court to the Western District of Washington for treatment under pre-AEDPA standards?

This is Petitioner’s second petition for post-conviction relief. This petition is being submitted directly to the Ninth Circuit Court of Appeals as directed by 28 U.S.C. §2255. Under 28 U.S.C. §2255, this Court has jurisdiction to determine whether Petitioner has made a prima facie case that the requirements of 28 U.S.C. §2255 have been met and that, consequently, this Court should authorize her to file her successive petition for post-conviction relief with the Western District of Washington.

If this Court finds the AEDPA’s standards inapplicable to Petitioner’s case, the Western District of Washington would be the proper venue for review.

Petitioner was convicted under the Federal Products Tampering Statutes in 1988 and was sentenced to 210 years in prison. Petitioner submits that she is actually innocent of the crimes for which she was convicted.

Knowing of her innocence and seeking to prove it, Petitioner sought the help of investigators and attorneys to aid her in proving her innocence and challenging her conviction and incarceration. She has mailed letter after letter and made contact after contact in her attempt to find assistance on the “outside” to help collect the evidence necessary to prove her innocence. See Declaration of Petitioner (as Exhibit 1) at page 1, and attachments to Petitioner’s Reply to Government’s Answer to Section 2255 Motion to Vacate Sentence filed on July 24, 1997, with the Western District of Washington in connection with the Prior Petition.

Petitioner’s efforts, while diligent, were not met with success until very recently -- when she was put in contact with a private investigator, Mr. A.L. Farr (hereafter “Farr”). Petitioner was afforded the opportunity by Farr to tell her story and explain why she was deserving of investigative and legal assistance in her bids to prove her innocence and to challenge her incarceration.

Farr agreed to begin an initial investigation of certain matters represented to him by Petitioner. After this initial investigation, Farr, becoming more and more convinced of Petitioner’s innocence the farther he “dug” into the case against her, began to devote substantial time to Petitioner’s case. See Declaration of Farr (as Exhibit 3) at page 1. Farr engaged in the sort of wide-ranging, “supra-diligent” investigation that, in time, did allow him (after eleven months of investigation and engaging the assistance of another private investigator, Mr. Paul Ciolino (hereafter “Ciolino”)), to uncover the newly discovered evidence presented herein. See Declaration of Farr at page 1.

Petitioner’s husband was one of two people to die from cyanide poisoning in the well-publicized 1986 Washington State Maximum Strength Excedrin product tampering case. Petitioner was convicted on five Federal products tampering counts after the presentation of a largely circumstantial case against her.

The prosecution’s theory of the case was that Petitioner, bored with her marriage and in need of money, poisoned her husband with cyanide in order to collect insurance proceeds. The prosecution argued that when her husband’s death was ruled to have been by natural causes, Petitioner, rather than keeping the life insurance proceeds she was to receive, having seemingly gotten away with a perfect crime, actively sought an additional life insurance payment due to the accidental nature of her husband’s death.

The prosecution argued that in order to show that her husband actually died of cyanide poisoning (a fact that had not, at that time been discovered in autopsy), Petitioner placed cyanide-laced medications in local stores so that others would die, causing her husband’s cause of death to be revisited and declared to be an accidental death for purposes of his life insurance.

In support of their theory of the case, the prosecution presented evidence that Petitioner stood to gain more from her husband’s life insurance policies if his death resulted from an accident.

The prosecution presented what appeared to be the particularly damning evidence that Petitioner had in her home two separate bottles of cyanide-laced Excedrin, purchased from two separate stores. The prosecution highlighted the incredibly low probability of anyone actually purchasing two “tampered” bottles at two separate stores on two separate occasions.

1. A “marker” was found within the subject cyanide that was only found in one relatively uncommon product;

3. Petitioner, who lived in the area where the tamperings occurred, shopped at the stores where the tampered products were found;

4. Petitioner had read and referred to books about poisonous plants and certain poisons at some point in the past;

5. Petitioner approached her daughter soon after her husband’s death and stated words to the effect, “I know what you are thinking, and the answer is no” (the implication being that this was an inculpatory statement alluding to her guilt for killing her husband); and

6. Petitioner talked with her daughter about killing her husband prior to his death.

While not presented at Petitioner’s trial as evidence, the “fact” that she had taken and “failed” a polygraph examination was used as a bargaining chip to keep out any mention of the $250,000.00 to $300,000.00 reward Petitioner’s daughter was expecting to receive to testify against Petitioner. This bargain, while not evidence per se, was important in the prosecution’s case, in that it did, indeed, keep out a mention of the reward Petitioner’s daughter was to receive for her testimony -- thereby limiting cross examination of this star prosecution witness.

The evidence that has been discovered shows that Petitioner is actually innocent of the crimes for which she was convicted. Petitioner submits that she successfully rebuts each aspect of the circumstantial case, as outlined in the previous section, and as presented to gain her conviction.

Petitioner submits that the newly discovered evidence does more than introduce doubt into the question of guilt, as one might attempt to do in a criminal trial situation, but rather, the newly discovered evidence effectively negates the case presented against petitioner -- showing her to be actually innocent.

With no reputable evidence against her, Petitioner submits that she is as innocent as any other person who was not tried for the subject product tamperings (other than, of course, the person or persons actually responsible).

In sum, when considered with the newly discovered evidence, the evidence as a whole now shows:

1. There was, in fact, relatively little life insurance money to be gained by Petitioner, and the policies were not “loaded up” prior to the death of Petitioner’s husband;

2. There was significant reason for Petitioner to doubt that her husband had died of emphysema. Her family doctor had told her that, without question, her husband did not have emphysema. It was for this reason, that Petitioner endeavored to discover what had really killed her husband, not an attempt to gain additional “double indemnity” or other accidental death benefits;

3. Petitioner did not specifically research “poisons” and “poisonous plants” to gain knowledge with which to effect the murder of her husband or others, but rather read up on such subjects in an effort to protect her children and grandchildren from their dangers, among hundreds of other subjects throughout her life;

4. Petitioner did not use the “marker” product that was found in the cyanide at issue in this case, but rather she used an alternative product not found in the cyanide. This fact is attested to by a neighbor of Petitioner who was used by an agent of the Federal Bureau of Investigations to search Petitioner’s home without a warrant or consent. Furthermore, the testimony of the prosecution witness relating to Petitioner’s purported actual purchase of the “marker” product has been shown to have been unreliable;

5. Although he has denied involvement, and was not prosecuted in this case, significant evidence seems to point to another individual as the potential perpetrator of the crimes for which Petitioner was convicted;

6. Petitioner did not purchase two bottles of laced Excedrin at two separate stores. One of the FBI’s investigators detailed within his typewritten reports that, indeed, the two bottles were purchased at the same store. In addition, a witness has a specific independent recollection of Petitioner purchasing the two bottles of Excedrin at a two for one sale, which accounts for the fact that there is no receipt showing a purchase of two bottles at one store;

7. Significant apparent misconduct on the part of those government actors “investigating” Petitioner’s case raises serious questions about all of the material brought to bear against Petitioner at trial; and

8. The prosecution presented a prime witness, Petitioner’s daughter, whose testimony regarding Petitioner’s behavior before her husband’s death appeared particularly damaging at trial. Petitioner’s investigators have uncovered significant credibility issues concerning this witness, which strongly call into question the veracity of her testimony.

Petitioner submits that when taken together, the newly discovered evidence and other material, as presented in this Petition, serves to undercut and eviscerate each aspect of the case presented against her at trial. The evidence presented herein shows that there is no credible evidence against her, and that, in turn, she is actually innocent of the crimes for which she was convicted.

Petitioner argues herein that she has met the strict standards of the AEDPA as regards successive petitions. Sufficient new evidence has been discovered to show by clear and convincing evidence that no rational fact-finder would have convicted her of the crimes for which she was convicted. Furthermore, the AEDPA’s time limitations have been met as this evidence could not have been discovered previously through the exercise of due diligence.

Petitioner argues in the alternative that due to the specific circumstances of her case, the pre-AEDPA standards should apply to this petition and that it should be referred by this Court to the Western District of Washington for direct consideration.

A. WHY PETITIONER SHOULD BE ALLOWED TO FILE A SUCCESSIVE PETITION, OR IN THE ALTERNATIVE, WHY PETITIONER’S PETITION SHOULD BE ACCEPTED AND REVIEWED UNDER PRE-AEDPA STANDARDS

Petitioner argues that new evidence has been discovered, that when considered in light of the evidence as a whole, shows by clear and convincing evidence that no rational fact-finder should have convicted her of any crime. Petitioner further argues that this evidence could not, through the exercise of due diligence, have been previously discovered. Petitioner argues that she makes, herein, the prima facie showing required by 28 U.S.C. §2255 in order to move this Court to authorize her to file the attached successive petition with the Western District of Washington.

Petitioner argues in the alternative that the 1996 AEDPA restrictions on second or successive petitions should not apply to her, and that the newly discovered evidence recited herein would have been sufficient to allow her relief under the pre-AEDPA standards. Under those standards, a showing of actual innocence and cause for and prejudice from the omission of her claim from any prior petitions would have been sufficient to allow for relief on a second or successive petition. Petitioner submits that she has made this showing herein.

B. HOW PETITIONER MEETS CURRENT STANDARD FOR AUTHORIZATION TO FILE SUCCESSIVE PETITION

Petitioner requests authorization to file a successive petition challenging her incarceration by raising the following issue:

Sufficient new evidence has been uncovered to show that (when considered in light of the evidence as a whole) Petitioner is actually innocent of the crimes for which she was convicted. Petitioner further submits that the new evidence could not have been discovered previously through the exercise of due diligence within the time frames imposed by the AEDPA or otherwise.

The AEDPA requires that Petitioner make a prima facie showing that she is deserving of authorization to file her successive petition. As a requirement thereof, Petitioner must satisfy a two-part test to show that:

1. The newly discovered evidence that forms the basis for her successive petition, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable fact-finder would have found her guilty of the offense or offenses, and

2. The facts supporting the newly discovered evidence could not have been discovered previously with the exercise of due diligence. 28 U.S.C. §2255 and 28 U.S.C. §2244(b)(2)(B)(I)(ii).

The newly discovered evidence contained herein is presented as a whole under the heading “Newly Discovered Evidence” and Petitioner submits that when considered in connection with the evidence as a whole, it shows by clear and convincing evidence that not only would she not have been convicted, but that she is actually innocent of the crimes for which she was convicted. See “Newly Discovered Evidence” section infra.

Petitioner submits that the new evidence that she presents herein was not available to her at the time the Prior Petition was filed. Petitioner further submits that the new evidence that she presents herein could not have been found previously even with the exercise of due diligence.

Petitioner’s claim is not one based on a newly discovered scientific test or recent, yet corroborated confession, where one is faced with one individual salient piece of newly discovered evidence. Hers is a case where individual “pieces” of new evidence and “pieces” of information shedding new light on prior evidence have been uncovered, just recently, through the efforts of a team of private investigators that have obtained this new material only after engaging in an investigation significantly more thorough than “mere” due diligence would have required. See Declaration of Farr at pages 1-2, and Declaration of Ciolino (as Exhibit 4) at page 1.

Nevertheless, Petitioner submits that even though the totality of the newly discovered evidence presented herein could not have been discovered previously through the exercise of due diligence, Petitioner was, indeed, diligent in attempting to have new evidence collected in her case.

Since being transferred to FCI Dublin, Petitioner has used all means at her disposal to contact investigators and attorneys to work “on the outside” to gather evidence of her innocence and/or aid her in the preparation of challenges to her incarceration. Petitioner has sent numerous letters to various attorneys and other professionals and investigators throughout the United States seeking assistance. The fact that these pleas went unanswered for years does not detract from Petitioner’s due diligence in doing what she could to obtain the evidence necessary for this filing in as timely a manner as possible. See Declaration of Petitioner at page 1 and attachments to Petitioner’s Reply to Government’s Answer to Section 2255 Motion to Vacate Sentence filed on July 24, 1997, with the Western District of Washington in connection with the Prior Petition.

Petitioner submits that enough of the newly discovered evidence included herein could not have been discovered previously through the exercise of due diligence and that it has only now been discovered through “supra-diligent” efforts of trained investigative professionals. This being the case, she argues that the AEDPA’s statute of limitations has, indeed, been met. See Declaration of Farr at pages 1-2, and Declaration of Ciolino at page 1 (both attesting to the fact that this new material could not have been discovered previously through the exercise of due diligence).

C. PRE-AEDPA STANDARDS SHOULD APPLY AND GATEKEEPING ROLE SHOULD BE INAPPLICABLE TO PETITIONER’S CASE

Petitioner submits that, as applied to her specific circumstances, (i.e., an actually innocent person convicted and incarcerated before the enactment of the AEDPA -- but for whom sufficient evidence to prove her innocence was not available through the exercise of due diligence either before or after enactment of the AEDPA) the limitations imposed by the AEDPA are not properly applicable to this petition.

Petitioner bases this argument on the Supreme Court’s rulings in Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), and Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). She also references in her argument the Third Circuit’s decision based on Landgraf and Lindh – In re Minarik, 166 F.3d 591 (3d Cir. 1999) and other related cases.

In Landgraf, the Court discussed the strong historical presumption against the retroactive application of statutes:

[T]he presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic. Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted. For that reason, the principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal. In a free dynamic society, creativity in both commercial and artistic endeavors is fostered by a rule of law that gives people confidence about the legal consequences of their actions.

The Minarik court addressed specifically the historical presumption against retroactive application of statutes as described in Landgraf and before, as well as the Supreme Court’s holding in Lindh in ruling on the retroactivity of the AEDPA restrictions on successive petitions vis a vis petitioners whose first petition was filed prior to enactment of the AEDPA.

While dismissing Minarik’s petition on other grounds, the Minarik court held that treating his second petition under the more strict AEDPA standards as enacted in 1996 would be an impermissible retroactive application of the AEDPA’s provisions. In making this ruling, the Minarik court considered their previous cases such as Burns v. Morton, 134 F.3d 109 (3d Cir. 1998), and Mathews v. Kidder Peabody & Co., Inc., 161 F.3d 156 (3d Cir. 1998).

In Burns, a state prisoner exhausted all of his state rights of direct appeal and collateral review on September 21, 1995, at which point there was no statute of limitations on his right to a federal habeas petition under 28 U.S.C. §2254. Soon afterwards, in 1996, the AEDPA established a statute of limitations that began to run on September 21, 1995 regarding Burns’ case. See 28 U.S.C. §2254. Burns filed his petition after September 22, 1996 (which would have been the statutory deadline after enactment of the AEDPA) but was allowed to proceed with his motion because “AEDPA’s statute of limitations, if applied to his case, would extinguish his claim. . . . [and such an application] would impermissibly attach new legal consequences to events completed before the statute’s enactment.” Burns, 134 F.3d, at 111, quoted in Minarik, 166 F.3d, at 600-01. As regards this case, the Minarik court noted that “We see no meaningful distinction between that case and Minarik’s assuming that Minarik had a right to proceed on his claim prior to AEDPA.”

In Mathews, the court was faced with an amendment to the Racketeer Influence and Corrupt Organizations Act (hereafter the “RICO Act”). The amendment altered the RICO Act such that “any conduct that would have been actionable as fraud in the purchase or sale of securities” would no longer trigger Federal RICO Act jurisdiction. See Minarik, 166 F.3d, at 601.

In Mathews, the court held that the practical effect of the RICO Act amendment was to alter substantive rights [of a plaintiff] because “prior to the passage of the [RICO Act amendment], the [plaintiff] had a RICO cause of action based upon defendants’ alleged actions, but afterward he would not.” Minarik, 166 F.3d, at 601, referencing Mathews, 161 F.3d, at 163. “Similarly, if a habeas petitioner had a right to initiate federal proceedings to secure release from confinement prior to AEDPA, and had not such rights thereafter, then AEDPA has altered substantive rights and thereby attached new legal consequences to pre-enactment conduct.” Minarik, 166 F.3d, at 161.

Taken together, the cases cited in this section seem to stand for the following proposition:

Retroactive application of the standards of a statute, in situations where such an application alters substantive rights, impermissibly attaches new legal consequences to conduct occurring prior to the enactment of any such statute.

Petitioner’s situation is unlike that of Minarik in that both the Prior Petition and this petition were filed after the AEDPA was passed. However, Petitioner’s situation is like the situations faced by Minarik, Burns and Mathews in that application of the new AEDPA standards on this petition does indeed appear to impermissibly attach new legal consequences to her pre-enactment conduct.

Petitioner was tried and convicted at a time well before enactment of the AEDPA. She was, therefore, not on notice at the time of her arrest and conviction of the consequences of not, prior to her incarceration, putting in place the required team of investigators, attorneys, etc. to effectively and quickly challenge her incarceration should a new time limit be imposed on such a challenge. Under the pre-AEDPA standards (which were in effect when she was accused, tried and convicted), she would have been able to have this team put together at a later date and still make an effective motion to challenge her incarceration.

The AEDPA was enacted and, as enacted, purported to alter Petitioner’s expectations and substantive rights by significantly changing the “rules of the game” for her, as an actually innocent inmate, to effectively challenge her incarceration. She could not go back to a time prior to her conviction and prepare for such a change.

The AEDPA was not passed until Petitioner’s behavior and status as an actually innocent person, convicted by a largely circumstantial case where proving her innocence by refuting such a case would take years were already locked in place. The decision to rely on pre-AEDPA standards, where she could put together a “post conviction relief team” later and still effectively challenge her incarceration was already made. This being the case, applying the AEDPA’s strictures on Petitioner and thereby removing this option would work to attach impermissibly retroactive consequences to conduct that occurred years prior to the AEDPA’s enactment. The AEDPA, if applied to Petitioner, would alter the standard under which evidence showing her innocence would be reviewed, if reviewed at all.

In the case where an actually innocent person is convicted and incarcerated prior to the enactment of the AEDPA, and where the new evidence necessary to show that such a person is innocent cannot be found and presented within the AEDPA’s time frame -- then to the extent the AEDPA restricts the full review of such evidence when found, the AEDPA impermissibly attaches retroactive consequences to pre-existing status and behavior. The pre-existing status being that of suffering conviction for a crime when one is actually innocent but where, due to the circumstantial nature of the case against the individual, the evidence showing that innocence can be found, only over time, through efforts beyond due diligence. The behavior being that of relying upon pre-AEDPA standards and not arranging for timely and sufficient legal and investigative assistance in this endeavor prior to being convicted and incarcerated.

Petitioner submits that she has made the required showing under the AEDPA in order to have this Court authorize her to file a successive motion with the Western District of Washington.

However, if the AEDPA’s successive petition standards to apply to this motion and if the Court finds that the AEDPA’s standards have not been met herein, Petitioner argues that the enactment of the AEDPA will have impermissibly attached consequences to her failure to provide for adequate investigative and legal assistance to challenge her incarceration prior to her conviction and incarceration.

Based on the foregoing, Petitioner requests leave to file and serve a successive petition for post conviction relief under the standards of the AEDPA and in the alternative moves this Court to transmit this petition for consideration by the Western District of Washington with instructions to treat the petition under pre-AEDPA standards.

Significant evidence has been recently discovered and has been synthesized and evaluated in light of the evidence in Petitioner’s case as a whole. The evidence falls into several categories and is organized herein in separate sections, each corresponding to a “leg” of the case that led to the conviction of Petitioner.

The case against Petitioner involved allegations that she had obtained cyanide and used it to kill her husband and then other random victims. At trial, the prosecution submitted evidence aimed at linking Petitioner with the specific cyanide found in the subject Excedrin and other containers. The prosecution presented evidence that a certain compound, or marker, was found “mixed in” with the cyanide in each of the tampered containers, and then presented evidence linking Petitioner to that marker.

The marker consisted of green crystals which were found in limited numbers, but in each of the tampered bottles. The green crystals were allegedly discovered by Mr. Robert Martz at the Federal Bureau of Investigation’s lab in Washington D.C. Mr. Martz headed the laboratory investigation surrounding Petitioner’s case and claimed to have examined all of the tampered bottles and capsules. See Trial Transcript (See attachments to Declaration of Carl Colbert (as Exhibit 2)) at page 1058.

Mr. Martz testified that he performed numerous tests on the green crystals in order to determine what they were and where they came from. Mr. Martz further testified that, upon investigation and testing, he determined that the compound was found in only one product found in the United States, a certain solid, non-liquid, algaecide. See Trial Transcript at pages 1060 and 1068-1069.

The prosecution presented evidence that Petitioner was a “fish fancier” and that she did, indeed, own an aquarium. The prosecution presented evidence from an employee of a pet store regarding Petitioner’s purported purchase and use of this particular algaecide product. See Trial Transcript at pages 696-698. The witness testified that he remembered Petitioner and specifically remembered ordering the particular algaecide product specifically for Petitioner in the past. The witness further testified that he remembered instructing Petitioner to “crush” the solid algaecide product before introducing it into her personal fish tank. See Trial Transcript at page 702.

The implication of this aspect of the prosecution’s case was that the “green crystal marker” allegedly found by Mr. Martz at the lab, was introduced by Petitioner accidentally when she mixed Excedrin and cyanide and then Anacin and cyanide in the same apparatus or container where she crushed the solid algaecide.

This was an important “leg” of the prosecution’s case, as aside from this “evidence” there was nothing linking Petitioner to any cyanide, or in any way to the cyanide found in the tampered products.

Petitioner’s investigators recently discovered that additional evidence supports Petitioner’s contention that, while she did own an unopened bottle of liquid algaecide, she never used any solid algaecide product, and in fact, never used the liquid algaecide product she did own.

One of Petitioner’s neighbors at the time of her husband’s death, and thereafter, was Ms. Sandy Scott (hereafter “Scott”). Scott lived across the road from Petitioner. Ms. Scott is the wife of King County, Washington police officer Harold Scott. See Declaration of Scott (as Exhibit 5) at page 1.

Scott has informed Petitioner’s investigators, and has testified herein via declaration, that she was approached by Agent Cusack (hereafter “Cusack”) of the FBI, due to her connection with the King County Police Department, her proximity to Petitioner and her friendship with Petitioner. She was approached by Cusack in December 1986, before Petitioner’s arrest, and she was asked by Cusack to “keep tabs” on Petitioner for Cusack. This was to include keeping track of all the people who came and left Petitioner’s property as well as the time and date of each such coming and going. She was further instructed to visit Petitioner on a regular basis, at Petitioner’s home, and to conduct certain searches while at Petitioner’s home. Scott was not instructed to inform Petitioner that she was making searches of Petitioner’s home at the direction of the FBI, or that Scott would be testifying at Petitioner’s Grand Jury, and neither she nor anyone else informed Petitioner of either point. See Declaration of Scott at pages 1-2, and Declaration of Hillier (as Exhibit 6) at page 2.

Specifically, Scott was asked by Cusack to search for a solid algae-killing product that may have been used by Petitioner. Scott, indeed, conducted this search, and conducted this search thoroughly. Scott did not find any solid algaecide product, but rather, found a liquid algaecide product. See Declaration of Scott at pages 1-2.

Neither the fact that Scott was used to search Petitioner’s home, nor the fact that even the FBI’s own agent had found, not solid algaecide, but liquid algaecide, were disclosed to Petitioner’s trial defense. See Declaration of Hillier at page 2.

Importantly, Scott noted that the liquid algaecide was full, and appeared unused. Petitioner explained to Scott that she had purchased, but did not use, the algaecide because she already had living plants and algae eating fish in her tank. Scott recalls that she looked into the fish tank and that Petitioner pointed out a few of the algae eating fish. Petitioner explained to Scott that after finding this out, she determined not to use any algaecide product, including the liquid product she now owned, because it would have killed her aquatic plants and algae-eating fish. In fact, in response to Scott’s specific questioning, Petitioner explained that never used a solid algaecide product and that she had never “crushed” algaecide tablets. See Declaration of Scott pages 1-2, see also Declaration of Petitioner at page 2.

Scott was asked to keep a “log” or “diary” of her contacts with Petitioner and the results of her searches of Petitioner’s home. This diary confirms Scott’s recollections regarding the contents of her declaration. See Declaration of Scott at page 1.

This recently discovered information from Scott tends to strongly support Petitioner’s testimony that she did not use algaecide, let alone purchase and “crush-up” any solid algaecide product. Consequently, this information removes an important “leg” of the case against Petitioner by removing any connection whatsoever between her and the cyanide used to kill her husband and Sue Snow.

B. PETITIONER’S POSSESSION OF TWO BOTTLES OF TAINTED MERCHANDISE PURCHASED AT TWO SEPARATE STORES

Significant testimony was introduced against Petitioner regarding her possession in her home of two bottles of cyanide-laced Excedrin. This evidence appeared to gain incredible significance as evidence was further presented that these two bottles were purchased on two different occasions from two different stores. With this evidence in place, the prosecution argued that the chances of one person obtaining two of only five tampered bottles at two separate stores on two separate occasions was astronomical. See Trial Transcript at page 1529.

This aspect of the case against Petitioner appeared particularly damning, as it allowed the jury to imagine for themselves the relative unlikelihood of any person actually making such a series of unlucky purchases.

Significant new evidence has been discovered that undermines completely the “multiple bottles/different stores” evidence. The evidence has been uncovered in two places, in the mind of a witness and in a previously undiscovered/undisclosed FBI memorandum.

One of the individuals contacted by the FBI in connection with the investigation of Petitioner was Ms. Anna Jo Rider (hereafter “Rider”). Rider was previously one of Petitioner’s neighbors and Rider knew Petitioner and her family well. See Declaration of Rider (as Exhibit 7) at page 1.

Rider was contacted by FBI Agent Randy Scott (hereafter “Scott”) on or about June 18, 1986. Scott initially questioned Rider about Petitioner and certain aspects of her family life. Scott then asked about Petitioner’s recent shopping habits vis a vis Excedrin and was informed directly by Rider that Rider had accompanied Petitioner to Albertson’s recently where Petitioner purchased two bottles of Excedrin at a two for one sale. Later in January of 1987, Rider repeated this information to FBI Agent Cusack. See Declaration of Rider at page 1. It appears that this information was not provided to Petitioner’s trial defense. See Declaration of Hillier at pages 2-3.

Additionally, according to Rider, Cusack had telephoned her earlier with a story regarding Petitioner. Cusack explained to Rider that Rider needed to “hide” because Petitioner was in the process of hiring a person or persons to kill Rider and her family.

Rider believed Cusack’s story and accelerated a move to Nevada, where she lived throughout the time surrounding Petitioner’s trial. Rider remembers being told by Cusack that “We need to get you where you can’t be reached by [Petitioner], her investigators and hit men.” See Declaration of Rider at page 1. Rider was, in fact, kept in Nevada throughout Petitioner’s trial.

Furthermore, Rider recalls Cusack stating words to the effect to her that if any investigators came to visit her and ask questions about [Petitioner’s] trial, that she should tell them that she thought [Petitioner] was guilty and that she should send the person away. She was also told by Cusack that each time she moved, she should change her telephone number, leave the telephone in the name of one of her children and keep her telephone number unlisted. See Declaration of Rider at pages 1-2. According to Rider, it was during this time that Cusack also told her that [Petitioner] had failed a polygraph and that the FBI “had her cold.” See Declaration of Rider at pages 1-2.

Rider further testified via declaration that in December of 1987 or January of 1988, Mr. Salvador Ramos, a Staff Investigator for the Office of the Federal Defender, did indeed find Rider and visit her in Nevada. Rider felt that she was in great danger, and told him words to the effect that “[Petitioner] did it” and slammed the door on him. See Declaration of Rider at page 2.

Rider has further stated that she called Cusack immediately after Ramos left and told Cusack what had transpired. According to Rider, Cusack told her that he didn’t know how Ramos found her, but that “she did right” by sending him away. Cusack also told her that she should move as soon as possible and that he would try to “protect her” from [Petitioner]. See Declaration of Rider at page 2.

Rider’s potential testimony regarding the timing and sequence of Petitioner’s purchase of the two bottles of tampered Excedrin would clearly have been significantly detrimental to the prosecution’s case. The fact that an FBI agent affirmatively acted to conceal a potentially exculpatory witness from Petitioner’s defense is, indeed, troubling.

Rider still maintains a “clear recollection” of her shopping trip with Petitioner where the two bottles were purchased simultaneously at Albertson’s. See Declaration of Rider at page 1. Petitioner submits that the new evidence, regarding what Ms. Rider would have testified to, is very relevant to her actual innocence showing.

Petitioner’s investigators have uncovered an FBI memorandum, which it is believed was also not produced to Petitioner’s trial defense team. See Declaration of Farr at page 2, and Declaration of Whitehurst (as Exhibit 8) at page 1, and Declaration of Hillier at page 1. This memorandum was included in a response to a Freedom of Information Act Request made by Dr. Frederic Whitehurst. The memorandum is dated June 24, 1986 and is from “SAC, Seattle (250-11) (P) to Director, FBI (250-117) (Attention: Roger Martz, FBI Laboratory). The memorandum was clearly prepared by an agent or employee of the FBI and specifically referenced Major Case #87 (the FBI case number for the tampering investigation that led eventually to Petitioner’s conviction). See Declaration of Whitehurst at page 1.

The memorandum is relevant to this section of Petitioner’s motion and the corresponding “leg” of the prosecution’s case against her in that it specifically states:

“For the information of the Laboratory, the enclosed bottle was obtained from a PAY N’ SAVE STORE located at. . .This store is located in very close proximity to the ALBERTSON’S STORE at . . .where STELLA NICKELL purchased the two bottles of Extra Strength Excedrin, which were obtained from her residence. . .” (emphasis not in original , capitalization in original).

According to this memorandum (which it appears was not disclosed to Petitioner’s trial defense team, see Declaration of Hillier at page 1, and has only been recently discovered under the FOIA, see Declaration of Whitehurst at page 1) the FBI, as of the date of this memorandum (well before Petitioner’s trial) indeed, knew Petitioner purchased the two bottles of tainted Excedrin capsules at the same time and at the same place.

When one considers Rider’s recollection along with the “Page 22” memorandum, one sees immediately that that portion of the case against Petitioner based upon the incredible coincidence of obtaining two tainted bottles of only five on two separate occasions and at two places has fallen away. It would seem that a product tamperer would, as likely as not, place tampered merchandise in the same area where an unlucky person such as Petitioner might easily grab two at the same time -- as was apparently the case.

Petitioner’s investigators have conducted an extensive review of the product tampering case for which Petitioner was convicted. In connection with this investigation, they have uncovered additional evidence and have come to the conclusion that another individual warrants, at the very least, substantial additional scrutiny in this matter.

When the product tamperings for which Petitioner was eventually convicted were initially discovered and investigated, other persons of interest were initially investigated as potential perpetrators. One such individual, Paul Webking (hereafter “Webking”), was investigated briefly at the time by the FBI and has, indeed, been investigated additionally by Petitioner’s investigators.

Webking was the husband of Ms. Sue Snow, the other individual who was killed in 1986 in Western Washington by cyanide-laced Excedrin. Ms. Snow died five days after Petitioner’s husband died, and was the first victim actually to be identified as having been killed by cyanide.

While Webking was investigated and then apparently cleared as a suspect, new evidence has surfaced which tends to call into question the apparent haste in which this decision was made and the apparent haste in which the investigative focus was transferred to Petitioner.

Petitioner’s investigators, in connection with their investigation of this case, recently uncovered evidence that appears to call into question the decision to pursue Petitioner rather than Webking. This evidence involves statements made by and actions of Webking immediately after Sue Snow’s poisoning.

One of petitioner’s investigators, Farr, as part of his investigation into this case, requested from the Auburn, Washington police department any information and documentation still in their possession and control regarding the tampering case and/or Petitioner. In response to his repeated requests, Farr and an associate were eventually allowed to peruse a “banker’s box” of documentation presented to them by the Auburn City Attorney. See Declaration of Farr at page 2. None of the information contained within the box appeared to shed any new light on the tampering case -- save for one document. A statement prepared by a certain Dr. Brian Trimble, formerly of Harborview Medical Center.

The statement was folded up and was not related to the other documents in the box. It appeared to Farr that the statement had somehow been placed in the box by accident (Farr believed this to be the case because of the way it was folded and stuck within a binder of presumably unrelated materials). See Declaration of Farr at page 2.

The statement was dated June 19, 1986, and was signed by Dr. Brian Trimble, the doctor who saw Sue Snow when she arrived at Harborview Medical Center at approximately 8:00 a.m. on June 11, 1986. It detailed a conversation Dr. Trimble had with Sue Snow’s husband, Paul Webking, while Sue Snow was still alive and being treated.

According to the statement, Webking approached Doctor Trimble and stated in the form of a question words to the effect that “I know this is a stupid question, but is it possible that my wife took some Excedrin capsules with cyanide in them?”

Farr visited and interviewed Dr. Trimble who now practices in Alaska. Farr showed him the statement purportedly signed by him. Dr. Trimble recognized his statement as having been the one given by him to a law enforcement officer and actually remembered his conversation with Webking and remembered thinking it strange at the time. Dr. Trimble represented to Farr that he did not follow the tampering case as it unfolded, and therefore took no action on Webking’s statement due to the fact that he was transferred to Alaska shortly after giving his statement. See Declaration of Farr at page 2, and Declaration of Trimble (as Exhibit 9) at page 1.

The timing of Webking’s statements is obviously very strange. As mentioned above, Sue Snow was the first person actually identified as having been killed by cyanide. There was no cyanide related or tampering related publicity until well after her death. Webking approached Dr. Trimble while Sue Snow was still alive (by necessity, well before her cause of death could have been discovered) and asked, not only about poisoning, not only about over the counter drugs, but specifically about EXCEDRIN and specifically about CYANIDE.

As part of their investigation into Petitioner’s conviction, Farr spoke with Sarah Webb and Rodney Webb, close relatives of Webking and Sue Snow who knew them at the time of Sue Snow’s death.

Sarah Webb and Rodney Webb recall specifically a conversation they had with Webking shortly following Sue Snow’s death. They recall that one day, a short time after her death, Webking indicated to them that he was contacted by the FBI and that the bureau wanted to know if he had any Excedrin, and that if so they would come by to pick it up. Webking further explained that the FBI did indeed come to his home where they searched for Excedrin both in the house and in his vehicles. Webking stated to the Webbs words to the effect that while he did have a bottle of Excedrin capsules in his truck, he was glad that they didn’t find it because if they did, they were going to think he did it. The Webbs declared that after he said this Webking laughed and said the FBI sure was “stupid” for not finding that bottle. Webking and his brother then went out to Webking’s 18-wheeler truck, poured the capsules out and flushed them down the toilet. He then stated that he drove away and threw the container out the window. See Declaration of Sarah Webb (as Exhibit 10) at page 1, and Declaration of Rodney Webb (as Exhibit 11) at page 1.

Sarah Webb was so frightened by Webking’s statements that she called either Auburn Detective Dunbar or FBI Agent Randy Scott and related Webking’s statements. Neither of the Webbs heard back from the person they called, nor anyone else regarding this information until contacted by investigator A.L. Farr in early November 2000. See Declaration of Sarah Webb at pages 1-2, and Declaration of Rodney Webb at pages 1-2.

Petitioner’s investigators also visited with and questioned Ms. Sarah Webb about her other recollections regarding the death of her sister and the aftermath. Among other things, Ms. Webb has declared that while her identical twin sister, Sue Snow, did use over the counter and prescription medications, Sue Snow never took capsules. This fact was confirmed by Rodney Webb who also remembered that Sue Snow never took capsules. See Declaration of Sarah Webb at page 1, and Declaration of Rodney Webb at page 1.

Ms. Webb recalls specifically that when she found out that her sister, Sue Snow, was very ill, she made arrangements to fly to Seattle and see her on June 11, 1986. She recalls finding out when her plane landed that her sister had already passed away. Ms. Webb and her husband then headed directly to Sue Snow’s house and arrived there at approximately 3:30 p.m. See Declaration of Sarah Webb at page 1, and Declaration of Rodney Webb at page 1.

When she arrived at Sue Snow’s home, Ms. Webb, who had developed a headache, went immediately to the kitchen cabinet (where she knew her sister kept her family’s medicines and vitamins) for a pain reliever. When she looked in the cabinet she discovered Excedrin capsules. Ms. Webb reported that she was surprised by this, because her sister “never” took capsules. Ms. Webb then approached Paul Webking with her concern that the capsules may have had something to do with her sister’s death. Sarah Webb reports that Webking stated words to the effect of “come on” and “lighten up” and appeared to brush off the possibility of a poisoning. See Declaration of Sarah Webb at page 1. This was mere four hours after Webking had posed the question to Dr. Trimble whether, specifically cyanide-laced Excedrin could have caused her death.

Before any public knowledge regarding any cyanide tainted Excedrin, Paul Webking asked a doctor treating his wife whether she could be suffering from the effects of such a poisoning. He then went home and acted as if this concern never crossed his mind. He then disposed of a bottle of Excedrin capsules he was “glad” the FBI did not find because if they did, they were going to think “he did it.” Furthermore, two witnesses have declared that Sue Snow never used capsules.

Petitioner submits that together, the “Webking related” materials submitted in this section strongly support her contention that she is actually innocent of the charges against her. Petitioner submits that based on the information contained in this section, there is actually more evidence against another person than there ever was against her.

Some of the most damaging testimony introduced against Petitioner was that of her own daughter, Cindy Hamilton (now known as Cindy Baca, hereafter “Baca”). Among other things, Baca testified that Petitioner had discussed with her, on various occasions, the killing capacity of certain drugs and the possibility of “overdosing” someone with cocaine or other drugs, and the availability of “hit-men” in the community. In addition, she testified to a conversation soon after the death of Petitioner’s husband where Petitioner was alleged to have stated “I know what you are thinking, and the answer is no” or words to that effect.

Petitioner submits that Baca’s testimony was not well corroborated, but was presented in her trial based on the veracity of Baca alone. This being the case, Petitioner submits that, Baca’s honesty and integrity as well as her reputation for truth telling behavior should bear significantly on the weight to be given said testimony in the calculation of whether Petitioner has met her burden herein.

Petitioner’s investigator, Farr, as part of his involvement in Petitioner’s case, investigated Baca and the various aspects of her testimony at Petitioner’s trial. Farr has uncovered evidence which Petitioner believes cuts deeply into Baca’s story as presented at trial and again tends to show Petitioner’s innocence by removing yet another “leg” from the case presented against her.

Petitioner’s investigators interviewed several persons who knew Baca well before and during the time of her testimony against Petitioner. These persons included Leah Matthews (hereafter “Matthews”), Baca’s sister, and Rachel Slawson, (hereafter “Slawson”) Baca’s daughter. A.J. Rider, (please see Rider section supra) was also questioned. In this section, Petitioner reports the various findings of her investigators and argues that, when taken as a whole, together with the other information her investigators have uncovered, Baca’s testimony should be afforded no weight whatsoever.

Both Matthews and Slawson reported to Petitioner’s investigators that Baca, for years prior to and during her testimony against Petitioner was a