Petition for Writ of Certiorari — Darren M. Rowe, Petitioner v. Harold W. Clarke, Director, Virginia Department of Corrections

No.

IN THE

SUPREME COURT OF THE UNITED STATES

Darren M. Rowe, Petitioner,

VS.

Harold Clarke, Dir. of

Virginia's Dept. of Corrections, Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

SUPREME COURT OF VIRGINIA

PETITION FOR A WRIT OF CERTIORARI

DARREN M. ROWE #1483625

Lawrenceville Correctional Center

1607 Planters Road

Lawrenceville, Virginia 23868

QUESTION(S) PRESENTED

I. Appellant, in his initial post-collateral proceeding, argued that his counsel

gave ineffective representation: failing to advise him of all possible defenses,

leading to a guilty plea. During the proceeding, trial counsel submitted an

affidavit to the court denying appellant's assertion. The state court then

summarily dismissed appellant's petition. Did the state court's decision to

summarily dismiss appellant's petition without an evidentiary hearing

conflict with relevant decisions of this court?

H. Appellant, in his initial post-collateral proceeding, argued that his

counsel gave ineffective representation: failing to advise him of all

potential affirmative defenses, leading to a guilty plea. During the

proceeding, trial counsel stated, in an affidavit, that she advised Appellant

that self-defense was not a viable defense, but never advised Appellant that

heat of passion was a possible defense. Did the state court err in its decision

that trial counsel provided effective representation?

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LIST OF PARTIES

[X] All parties appear in the caption of the case on the cover page.

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TABLE OF CONTENTS

Page Number

OPINIONSBELOW ..............................................................................................................................1

JURISDICTION....................................................................................................................................1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .............................................1

PROCEEDINGS OF THE LOWER COURTS......................................................................................2

STATEMENT OF THE CASE .............................................................................................................3

REASONS FOR GRANTING THE WRIT .........................................................................................5

THE STATE COURT'S DECISION TO SUMMARILY DISMISS MR. ROWE'S

HABEAS PETITION WITHOUT AN EVIDENTIARY HEARING IS IN

ERROR AND CONFLICTS WITH RELEVANT DECISIONS

OFTHIS COURT...................................................................................................................... 5

THE STATE COURT'S DECISION THAT MR. ROWE'S COUNSEL

PROVIDED EFFECTIVE REPRESENTATION IS IN ERROR AND

CONFLICTS WITH RELEVANT DECISIONS

OFTHIS COURT..................................................................................................................... 7

CONCLUSION................................................................................................................................14

INDEX TO APPENDICES

APPENDIX A: Supreme Court of Virginia opinion

APPENDIX B: Circuit Court of Louisa County opinion

APPENDIX C: Provisions of the United States Constitution

APPENDIX D: Ms. Harper's affidavit

APPENDIX B: Mr. Rowe's Original Arraignment

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TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

Buck v. Davis, 137 S.Ct. 759, 776 (U.S. 2017)...............................................................................11

Fontaine v. United States, 411 U.S. 213,93 S.Ct. 1461 (U.S. 1973)...............................................6

Harris v. Nelson, 394 U.S. 286, 300, 89 S.Ct. 1082, 1091 (U.S. Cal. 1969)...................................6

Hilly. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366 (1985)........................................................8,10,12

Machibroda v. United States, 368 U.S. 487, 494-495, 82 S.Ct. 510 (U.S. Ohio 1962)...................5

Mathews v. U.S., 485 U.S. 58, 108 S.Ct. 883 (U.S. Wis. 1988).....................................................10

McMann v. Richardson, 397 U.S. 759, 770-71, 90 S.Ct. 1441, 1448 (1970).................................11

Mullaney v. Wilbur, 421 U.S. 684, 704, 95 S.Ct. 1881(U.S. Me. 1975).........................................8

Patterson v. New York, 432 U.S. 197, 201, 97 S.Ct. 2319, 2322 (IJ.S.N.Y. 1977).....................8,10

Roe v. Flores-Ortega, 528 U.S. 470, 482, 120 S.Ct. 1029 (2000).................................................11

Stevenson v. United States, 162 U.S. 313, 16 S.Ct. 839,40 L.Ed. 980 (1896).............................10

Strickland v. Washington, 466 U.S. 668 (1984)..............................................................................7

Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973)...............11

Coles v. Peyton, 389 F.2d 224, 226 (4th Cir. 1968)......................................................................12

Lee v. Clarke, 781 F.3d 114 (C.A.4 (Va.) 2015).............................................................................8

Marzullo v. Maryland, 561 F.2d 540, 544 (4th Cir. 1977)...........................................................12

Hodge v. Commonwealth, 217 Va. 338, 228 S.E.2d 692, 697 (1976)............................................8

McClung Commonwealth, 215 Va. at 657, 212 S.E.2d at 292 (1975)........................................9

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STATUTES AND RULES

28 U.S.C.A. U.S. Supreme Court Rule 10 (c)................................................................................2

VA. Code 18.2-51.2 ..................................................................................................................... 2,4

VA. Code 18.2-53.1.....................................................................................................................2,4

OTHER

American Bar Association Project on Standards for Criminal Justice, Standards Relating

to the Prosecution Function and the Defense Function s 4.1 (tent. Draft 1970)............................9

V.

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Mr. Rowe respectfully prays that a writ of Certiorari issue to review the judgment below.

OPINIONS BELOW

The opinion of the Supreme Court of Virginia to review the merits appear at Appendix A to the

petition and is unpublished. The opinion of the Louisa County circuit court appears at Appendix B to

the petition and is also unpublished.

JURISDICTION

The date on which the Supreme Court of Virginia decided Mr. Rowe's case was November 28th,

2017. A copy of that decision appears atAppendix A. The jurisdiction of this Court is invoked under 28

U.S.C. § 1257 (a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The following provisions of the United States Constitution are involved: U.S. Const. Amends. VI, XIV.

The test of said provisions are attached hereto as Appendix "C ."

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PROCEEDINGS BELOW

Darren Matthew Rowe (hereinafter "Mr. Rowe") is incarcerated pursuant to the final judgment

of the Circuit Court for the County of Louisa entered on August 28, 2014, following a plea of guilt. Mr.

Rowe was convicted of one count of Aggravated Malicious Wounding pursuant to VA. Code 18.2-51.2,

and one count of a use of a firearm in the commission of a felony pursuant to VA. Code 18.2-53.1.

Mr. Rowe was sentenced on July 2, 2014, to forty (40) years for Aggravated Malicious

Wounding with (30) of those years suspended and three (3) years for the use of a firearm in the

commission of a felony with an active sentence of (13) years to serve in the Virginia's Department of

Corrections. The Circuit Court for the County of Louisa entered a final judgment on August 28, 2014.

Mr. Rowe did not file a petition for appeal. Mr. Rowe then filed a petition for a Writ of Habeas

Corpus to the Circuit Court of Louisa County on April 19, 2016. The Circuit Court of Louisa County

denied Mr. Rowe's petition on August 17, 2016. Subsequently, Mr. Rowe filed his Notice of Appeal

with the Circuit Court of Louisa County on August 24, 2016. Mr. Rowe filed his appeal with the

Supreme Court of Virginia on October 28th, 2016.

The Supreme Court of Virginia denied Mr. Rowe's appeal on November 28th, 2017. On

December 6th, 2017, Mr. Rowe filed a Motion to the Supreme Court of Virginia for a Writ of Certiorari

to the United States Supreme Court.

Mt Rowe now timely submits this Petition for Writ of Certiorari to this Court pursuant to 28

U.S.C.A. U.S. Supreme Court Rule 10 (c).

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STATEMENT OF THE CASE

The following case is an example of how a state court's ruling conflicts with relevant decisions

of this Court.

On February 21, 2013, around 10:55 pm., Ms. Amanda Fitzgerald (hereinafter "Ms. Fitzgerald")

and Mr. Rowe were suddenly awakened by Mr. O'Bryan Johnson (hereinafter "Mr. Johnson"), the

alleged victim, who was pounding on the doors and windows of the apartment shared by both Mr.

Rowe and Ms. Fitzgerald. Mr. Rowe's four year old daughter was also startled and awakened, to the

point where she began crying.

Mr. Rowe and Ms. Fitzgerald then heard a loud noise coming from their parking area. Upon

looking out of their apartment window, Mr. Rowe and Ms. Fitzgerald witnessed Mr. Johnson jumping

on the hood and the roof of Mr. Rowe's car.

Mr. Johnson then got into his car and started to drive away. Mr. Rowe immediately got into his

car and followed Mr. Johnson. Mr. Rowe confronted Mr. Johnson at a nearby gas station, located less

than 45 seconds away from his apartment complex. Mr. Rowe got out of his car and kicked the front

passenger side window of Mr. Johnson's car. Mr. Johnson then got out of the driver's seat of his vehicle

and charged at Mr. Rowe. While charging at Mr. Rowe, Mr. Johnson reached in the side of his

waistband as if he was grabbing for a weapon.

Mr. Rowe then retrieved his firearm. Mr. Johnson continued to charge at Mr. Rowe screaming,

"shoot me nigga." Mr. Rowe fired a shot. After shooting Mr. Johnson one time, Mr. Rowe became

conscious of what happened, panicked, and left the scene.

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Mr. Rowe was arrested and charged with Aggravated Malicious Wounding pursuant to Va. Code

18.2-51.2 and the use of a firearm in the commission of a felony pursuant to Va. Code 18.2-53.1.

Mr. Rowets retained counsel, Ms. Amy Harper (hereinafter "Ms. Harper"), represented Mr.

Rowe during the trial and sentencing phase of his criminal proceedings. On October 15, 2013, Mr.

Rowe met with Ms. Harper to discuss his version of events.

Following the October 15, 2017 meeting, Ms. Harper met with the Prosecutor on November 22,

2013, executing the Discovery. On December 7, 2013, Ms. Harper stated in an affidavit that she told

Mr. Rowe "that self-defense was not a viable defense to the charges." (See Appendix D).

Ms. Harper never advised Mr. Rowe that "Heat of Passion" was an affirmative defense to the

charge of Aggravated Malicious Wounding. The only advice Ms. Harper gave to Mr. Rowe was to take

the offered plea agreement because "[T]he evidence was overwhelming and a finding on the aggravated

malicious wounding charge was inevitable." (See Appendix D)

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REASONS FOR GRANTING THE PETITION

I. THE STATE COURT'S DECISION TO SUMMARILY DISMISS MR. ROWE'S HABEAS

PETITION WITHOUT AN EVIDENTIARY HEARING IS IN ERROR AND CONFLICTS

WITH RELEVANT DECISIONS OF THIS COURT.

The state court's decision to summarily dismiss Mr. Rowe's habeas petition without an

evidentiary hearing is in error and conflicts with relevant decisions of this court.

Mr. Rowe pleaded guilty, but contends that his counsel, Ms. Harper, failed to advise him of

potential affirmative defenses to the charges he plead guilty to. Mr. Rowe's allegations about Ms.

Harper's incompetence were not patently frivolous or false. In fact, Mr. Rowe set out factual allegations

in his habeas petition that Ms. Harper failed to properly advise him of all possible defenses in his

situation. (Pet. Mem. pg. 19, 21, 29, 30). During the habeas proceeding, Ms. Harper submitted an

affidavit denying the allegations. In her affidavit, Ms. Harper stated she told Mr. Rowe "that selfdefense was not a viable defense to the charges." (See Appendix D). However, what Ms. Harper did not

say or do, is advise Mr. Rowe that the Heat of Passion was a potential affirmative defense to his

charges. Mr. Rowe's allegations in this case that Ms. Harper's counsel was ill-advised of all possible

defenses were not in themselves so vague as to warrant dismissal for that reason alone.

Having said that, the state court erred in it's decision when it denied Mr. Rowe the opportunity

to substantiate his allegations at an evidentiary hearing.

In an earlier case, this Court held that a defendant is entitled to the opportunity to substantiate

his allegations at an evidentiary hearing. See Machibroda v. United States, 368 U.S. 487, 494-495, 82

S.Ct. 510 (U.S. Ohio 1962).

The similarities between the above mentioned case and Mr. Rowe's is that the Assistant United

States Attorney in Machibroda, presented affidavits to the court "emphatically den[ying] any promises

or coercion with respect to the petitioner's pleas of guilty." 368 U.S. at 491. The District Judge in

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Machi broda determined without a hearing that Machibroda's allegations were false. This Court,

however, granted Certiorari and eventually reversed the lower court's ruling.

In a later case, the defendant also set out detailed factual allegations regarding alleged

circumstances that occurred during his criminal prosecution, which ultimately led to a guilty plea. The

United States District Court denied the defendant's collateral attack as per se unavailable, and the Court

of Appeals for the Sixth Circuit affirmed the decision. The petitioner sought Certiorari to review the

judgment. He urged that under the plain wording of this Court's decision in Machi broda, he was entitled

to an evidentiary hearing on his claims. This Court granted Certiorari, and reversed the lower court's

ruling. See Fontaine v. United States, 411 U.S. 213,93 S.Ct. 1461 (U.S. 1973)

Moreover, during a habeas corpus proceeding, "where specific allegations before the court show

reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he

is confined illegally and is therefore entitled to relief, it is the duty of the court to provide the necessary

facilities and procedures for an adequate inquiry." Harris v. Nelson, 394 U.S. 286, 300, 89 S.Ct. 1082,

1091 (U.S. Cal. 1969)

The aggravated malicious wounding charge, coupled with the facts of the case, show how the

Heat of Passion defense would have been an affirmative defense for Ms. Harper to pursue. In addition,

Ms. Harper had an extensive knowledge about the law, particularly the law concerning aggravated

malicious wounding. (See Appendix B). However, Ms. Harper still failed to advise Mr. Rowe of all

potential affirmative defenses, specifically the Heat of Passion, and the Circuit Court for the County of

Louisa should have provided the "necessary facilities and procedures for an adequate inquiry." 394 U.S.

at 300, 89 S.Ct. at 1091

Therefore, the state court's ruling was in error and conflicted with relevant decisions from this

Court. Mr. Rowe prays that this Court grant his petition for a Writ of Certiorari and reverse the state

court's ruling, remanding the same for an evidentiary hearing.

II. THE STATE COURT'S DECISION THAT MR. ROWE'S COUNSEL PROVIDED

EFFECTIVE REPRESENTATION IS IN ERROR AND CONFLICTS WITH RELEVANT

DECISIONS OF THIS COURT.

The Circuit court for the County of Louisa, in Louisa Virginia, made an erroneous decision that

Mr. Rowe's counsel provided effective representation. That decision conflicts with relevant decisions of

this Court.

Ms. Harper's representation fell below a reasonable standard when she failed to advise Mr. Rowe of

all potential affirmative defenses, such as: Heat of Passion, during the criminal proceeding. The facts of

the case show Mr. Rowe acting in the heat of the moment when Mr. Johnson provoked him by instilling

fear into his young daughter, and his then girlfriend, Ms. Fitzgerald. This evidence is sufficient to

support a heat of passion defense because the attack was not purposeful, or with a sedate and deliberate

mind.

Mt Rowe would not have plead guilty and would have gone to trial if he knew Heat of Passion

was a possible defense. Ms. Harper's incompetent representation prejudiced Mr. Rowe, and his

statements made in the plea colloquy should be controverted as well.

A. Trial counsel's representation fell below an objective reasonable standard.

The standard regarding ineffective assistance is found in the seminal case of Strickland v.

Washington, 466 U.S. 668 (1984). Strickland's two-prong test relies on the performance and prejudice

aspects. Under Strickland's performance test, Mr. Rowe must show that he received deficient legal

representation, measuring the competency of his counsel against what an objectively reasonable

attorney would have done under the circumstances existing at the time of representation.

An objectively reasonable attorney would have given his/her client competent advice to all of

the potential affirmative defenses available to the crime(s) charged. This Court agrees. Thirty-two years

ago this Court ruled that an error of counsel is found when counsel fails to advise a defendant of a

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potential affirmative defense to the crime charged. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366

(1985)

Mr. Rowe was charged with Aggravated Malicious Wounding, and given the facts of this case,

Heat of Passion is an affirmative defense. Malice is an essential and indispensable element of the crime

of Aggravated Malicious Wounding, and passion presupposes the absence of Malice. Malice and Heat

of Passion cannot coexist.

This Court went on to say that "a person accused of murder could rebut the statutory

presumption that he committed the offense with malice aforethought by proving that he acted in the

heat of passion on sudden provocation." Patterson v. New York, 432 U.S. 197, 201, 97 S.Ct. 2319, 2322

(U.S.N.Y. 1977)

Moreover, this Court in a similar case decided that the prosecution has the burden to "prove

beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is

properly presented..." See Mullaney v. Wilbur., 421 U.S. 684, 704, 95 S.Ct. 1881 (U.S. Me. 1975)

What distinguishes the two cases mentioned above and Mr. Rowe's case is that Mullaney and

Patterson, both had jury trials, whereas Mr. Rowe never had the opportunity to be heard in a trial. This

Court held in Mullaney and Patterson that the burden fell on the prosecution to prove malice or the

absence of heat of passion. So, whenever Malice is an essential and indispensable element of the crime,

the heat of passion is always an affirmative defense.

The Fourth Circuit even opined on this issue between Malice and Heat of Passion in Lee v.

Clarke,781 F.3d 114 (C.A.4 (Va.) 2015). The court said that" 'Virginia has long recognized that malice

and heat of passion cannot coexist. Proof of malice excludes the presence of passion, and proof of

passion presupposes the absence of malice.' " 781 F.3d at 123 (quoting Hodge v. Commonwealth, 217

Va. 338, 228 S.E.2d 692, 697 (1976)).

The Fourth Circuit went on to reverse the lower court's ruling, holding that an instruction on

heat of passion was warranted; and, that Lee was denied effective assistance of counsel during his

murder trial.

Virginia has also ruled that the heat of passion may result when one is provoked to fear or rage

or both. See McClung Commonwealth, 215 Va. at 657, 212 S.E.2d at 292 (1975).

In Ms. Harper's affidavit, she acknowledged that she discussed with Mt Rowe that self-defense

was not a viable defense. (Appendix D). What Ms. Harper did not say or do, is advise Mr. Rowe that

the Heat of Passion was a possible defense. The Circuit Court Louisa County admitted that Ms. Harper

had an extensive knowledge about the law, particularly the law concerning aggravated malicious

wounding. (Appendix B).

With such an extensive knowledge, a competent attorney would know that Malice and Heat of

Passion cannot coexist. Moreover, according to the American Bar Association, Ms. Harper provided

ineffective representation by neglecting her duties to investigate other possible defenses to the crime in

accordance with the facts. Facts that were relevant to Mr. Rowe's guilt and penalty. See American Bar

Association Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function

and the Defense Function s 4.1 (tent. draft 1970).

It was quintessentially the duty of Ms. Harper to provide Mr. Rowe with available advice about

all possible defenses. The Sixth Amendment guarantees the accused a lawyer "for his defence" against a

"criminal prosecutio[n]." Therefore, Ms. Harper's failure to advise Mt Rowe of all potential affirmative

defenses satisfies the first prong of the Strickland analysis because her representation fell below an

objective reasonable standard.

B. Trial counsel's representation prejudiced Mr. Rowe during his criminal proceeding.

Mt Rowe has shown that his trial counsel, Ms. Harper's competence fell below a reasonable

standard for attorneys, violating Strickland's performance prong.

Mr. Rowe would have continued to trial, as he originally planned (Appendix E), if Ms. Harper

would have advised him that Heat of Passion was a potential affirmative defense; and Mr. Rowe's

choice to do so would have been rational.

Such a choice would have been rational if Mr. Rowe would have gone to trial, because his

counsel could have submitted a jury instruction for a lesser-included offense based on using the heat of

passion as a defense. See Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (a

defendant must show a reasonable probability that but for counsel's erroneous advice, the defendant

would have rejected the plea agreement and proceeded to trial and that such a choice would be rational

under the circumstances.)

There existed sufficient evidence where a reasonable jury would have more than likely used a

lesser included instruction in Mr. Rowe's favor. This Court held that "a defendant is entitled to an

instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury

to find in his favor." Mathews v. U.S., 485 U.S. 58, 108 S.Ct. 883 (U.S. Wis. 1988); See also Stevenson

v. United States, 162 U.S. 313, 16 S.Ct. 839, 40 L.Ed. 980 (1896)

Furthermore, the responsibility to prove the elements of Malice beyond a reasonable doubt

would have rested with the state. See Patterson v. New York, 432 U.S. 197, 201, 97 S.Ct. 2319, 2322

(U.S.N.Y. 1977).

The element of aggravated malicious wounding that distinguishes it from unlawful wounding is

malice, expressed or implied; and, going to trial with the Heat of Passion as a defense could have

resulted in two different outcomes: 1) An acquittal of the charges; or 2) A lesser-included charge and

sentence, such as: Unlawful wounding, where the statutory maximum sentence for unlawful wounding,

under the VA Code, is five years. Therefore, giving Mr. Rowe options of a shorter term of incarceration

or the possibility of no incarceration at all.

Had it not been for Ms. Harper's negligence, there is "a reasonable probability that, but for

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counsel's unprofessional errors, the result of the proceeding would have been different." Roe v. FloresOrtega, 528 U.S. 470, 482, 120 S.Ct. 1029 (2000). Moreover, a reasonable probability is explained to

mean that "at least one juror would have harbored a reasonable doubt," in regards to Mr. Rowe's

defense of Heat of passion. Buck v. Davis, 137 S.Ct. 759, 776 (U.S. 2017).

Ms. Harper's prejudicial actions coincide with this Court's long standing ruling when it comes to

counsel's deficient performance in conjunction with plea agreements. Therefore, Ms. Harper's

representation resulted in insurmountable prejudice. Ms. Harper's error greatly impacted the judgment

and sentence in Mr. Rowe's criminal proceeding, violating Mr. Rowe's Fourteenth Amendment right to

"due process of law."

C. Mr. Rowe should be allowed to controvert his statements made in his plea colloquy.

The barriers for overcoming a guilty plea are not insurmountable, and Mr. Rowe's right to contest

his guilty plea is not foreclosed. Mt Rowe may attack his guilty plea by showing that the advice he

received from Ms. Harper fell below the "range of competence demanded of attorneys in criminal

cases." McMann v. Richardson, 397 U.S. 759, 770-71, 90 S.Ct. 1441, 1448 (1970); See also Tollett v.

Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973) (The Court held that in

order to obtain relief by way of federal habeas corpus petitioner was required to establish.. .that his

attorney's advice to plead guilty [was]

...

outside the range of competence demanded of attorneys in

criminal cases.)

McMann's counsel erroneously thought the confession could be admitted, which resulted in a guilty

plea. This Court held that McMann's counsel misjudged the admissibility of the confession and the

Court should not "retrospectively consider counsel's advice to be right or wrong." 397 U.S. at 770--'

771, 90 S.Ct. at 1448

Unlike McMann, where counsel advised McMann that the confession could be raised after a guilty

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plea, Ms. Harper's failure to advise Mr. Rowe of any potential affirmative defenses, however, was

grossly negligent and fell below the range of competence demanded of attorneys in criminal cases.

This Court ruled fifteen years after McMann on what the range of competence demanded of

attorneys in criminal cases were. The ruling said that an error of counsel is found when counsel fails to

advise a defendant of a potential affirmative defense to the crime charged. See Hill v. Lockhart, 474

U.S. 52, 59, 106 S.Ct. 366 (1985)

Moreover, The fourth Circuit said that "counsel must confer with his client without undue delay

and as often as necessary, to advise him of his rights and to elicit matters of defense or to ascertain that

potential defenses are unavailable." Coles v. Peyton, 389 F.2d 224, 226 (4th Cir. 1968) (Emphasis

added). Ms. Harper's errors were flagrant. Her erroneous advice resulted from a combination of neglect

and ignorance rather than an informed professional deliberation. See Marzullo v. Maryland, 561 F.2d

540, 544 (4th Cir. 1977).

Since Ms. Harper's representation fell below the range of competence demanded of attorneys in

criminal cases, Mr. Rowe should be allowed to controvert his statements made during the plea

colloquy.

CONCLUSION

WHEREFORE, Mr. Rowe respectfully prays that this Court grants his petition for Writ of

Certiorari and remand the case for further proceedings as this Court may direct.

Respectfully Submitted,

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Rowe,

Petitioner

LVCC 1607 Planters Road

Lawrenceville, Virginia 23868

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