Petition for Writ of Certiorari — Amilcar Rivas-Rivera, Petitioner v. Pennsylvania
Supreme Court briefJul 17, 2018
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No.
iini
SUPREME COURT OF THE UNITED STATES
Amilcar Rivas Rivera
PETITIONER
-
(Your Name)
vs.
COMMONWEALTH OF PENNSYLVANIA
RESPONDENT(S)
-
ON PETITION FOR A WRIT OF CERTIORARI TO
•
PENNSYLVANIA SUPERIOR COURT
(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)
PETITION FOR WRIT OF CERTIORARI
Amilcar Rivas-Rivera
(Your Name)
S.C.I. Waymart, P.O. Box 256
(Address)
Waymart, Pennsylvania, 18472
(City, State, Zip Code)
N/A
(Phone Number)
QUESTION(S) PRESENTED
WHETHER THE PENNSYLVANIA LOWER COURT AND APPELLATE
COURTS DECISION DISMISSING PETITIONER'S SECOND PRO SE PCRA
PETITION AS UNTIMELY IS CONTRARY TO PENNSYLVANIA'S OWN
ESTABLISHED SUPREME COURT LAW AND WITH THIS COURTS
HOLDING IN HOUSTON V. LACK, 487 U.S. 266,108 S.CT. 2379, 101 L.ED.
245 (1988), REGARDING THE PRISON MAIL BOX RULE. (See Reason No. I)
WHETHER PETITIONER'S CLAIM THAT TRIAL COUNSEL FAILED TO
INFORM HIM OF THE SEVERANCE OFFER SATISFIES THE TWO
PRONGS OF STRICKLAND V. WASHINGTON 466 U.S. 688,104 S.Ct. 2052,
80 L.Ed. 2d 674 (1984) TEST. (See Reason No. II)
WHETHER TRIAL COUNSEL HAS POWER TO FORGO A SEVERANCE
OFFER AND INSTEAD INDUCE HER CLIENT TO PLEA GUILTY
RELYING ON AN AGREEMENT WITH THE PROSECUTOR THAT WAS
NEVER FULFILLED. (See Reason No. II)
WHETHER TRIAL COUNSEL HAS THE POWER TO FORGO A
SEVERANCE OFFER AND PLEA HER CLIENT GUILTY AGAINST HER
CLIENTS EXPRESSED DESIRES AND THEREBY WAIVING HER
CLIENTS CONSTITUTIONAL RIGHT TO PLEA NOT GUILTY AND HIS
DUE PROCESS RIGHT TO A FAIR OPPORTUNITY TO DEFEND AGAINST
THE STATE'S ACCUSATIONS. (See Reason No. II)
I
WHETHER PETITIONER HAS THE RIGHT UNDER THE
CONSTITUTION TO ENFORCE A PLEA AGREEMENT WHERE HE
SIGNED THE GUILTY PLEA RELYING UPON TRIAL COUNSEL'S ADVICE
OF AN AGREEMENT WITH THE PROSECUTOR; AND WHETHER
PETITIONER NOW IS ENTITLED TO THE BENEFIT OF THAT
AGREEMENT. (See Reason No. III)
WHETHER TRIAL COUNSEL'S FAILURE TO INVESTIGATE SEVERAL
DEFENSES BEFORE DECIDING TO PLEA HER CLIENT GUILTY
VIOLATES HER CLIENTS SIXTH AND FOURTEENTH AMENDMENT
RIGHT OF THE FEDERAL CONSTITUTION. (See Reason No. W)
WHETHER PETITIONER'S SECOND CLAIM REGARDING NEW
DISCOVERED EVIDENCE IS TIMELY FILED PURSUANT TO THE
PENNSYLVANIA SUPREME COURT DECISION IN COMMONWEALTH V.
LARK, 746 A.2D 585 (PA. 2000). (See Reason No. V)
WHETHER THE LOWER COURT AND THE PROSECUTOR HAS POWER
TO MISLEAD THE APPELLATE COURTS BY PRESENTING FALSE AND
MISLEADING STATEMENTS; AND DOES SUCH STATEMENTS VIOLATE
PETITIONER'S 14TH AMENDMENT RIGHT TO THE EQUAL PROTECTION
OF THE LAW. (See Reason No. VI)
II
LIST OF PARTIES
N All parties appear in the caption of the case on the cover page.
[1 All parties do not appear in the caption of the case on the cover page. A list of
all parties to the proceeding in the court whose judgment is the subject of this
petition is as follows:
Til
I
TABLE OF CONTENTS
OPINION......................................................................................................................1
JURISDICTION...........................................................................................................2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED......................3
STATEMENTOF THE CASE.....................................................................................4
REASON FOR GRANTING THE WRIT.....................................................................9
INDEX TO APPENDICES
APPENDIX A-DECISION OF PENNSYLVANIA SUPERIOR COURT.
APPENDIX B-DECISION OF LANCASTER COUNTY TRIAL COURT OF
PENNSYLVANIA.
APPENDIX C-DECISION OF PENNSYLVANIA SUPREME COURT DENYING
REVIEW.
APPENDIX D-DECISION OF PENNSYLVANIA SUPREME COURT DENYING
REHEARING.
APPENDIX E-EXHIBITS.
IV
TABLE OF AUTHORITIES CITED
-
PAGE NUMBER:
CASES:
Atkins v. County of Riverside, 151 Fed. Appx. 501, 506, 2005 U.S. App. Lexis 19928
(9th Cir. 2005).................................................................30
Boria v. Keane, 99 F. 3d 492, 496-97 (2d Cir. 1996)...................................16
Brookhart v. Janis, 384 U.S. 1, 7, 16 L.ed. 2d 314, 86 S. Ct. 1245 (1966)..................18
Buckey v. Terhune, 441 F.3d 688, 699, 2006 U.S. App. Lexis 6612 (9th Cir. 2006).......24, 25
Burns v. Morton, 134 F.3d 109, 113 (3rd Cir. 1998)...................................12
California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984).......30
Carter v. McCarthy, 806 F. 2d 1373, 1377 (9th Cir. 1986)..............................24
Chambers v. Missisippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973)
...........................................................19, 26, 27, 30
Commonwealth v. Fowler, 670 A.2d 1153 (Pa. Super. 1996)............................36
Commonwealth v. Jones, 549 Pa. 58, 700 A.2d 423 (Pa. 1997).......................12, 13
Commonwealth v. Lark, 560 Pa. 487, 746 A. 2d 585, 588 (Pa. 2000). 9, 10,11, 13,14, 15, 32, 33
.
Commonwealth v. New, 47 A.2d 450 (Pa. Supreme Court 1946) ........................30
Commowealth v. Weiss, 622 Pa. 663, 81 A. 3d 767, 807 (Pa. Supreme Court 2013).........33
Conffin v. Ogden, 85 U.S. 120, 124 (1874)..........................................30
Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986)...........30
Cruz v. New York, 481 U.S. 186, 187, 95 L. Ed. 2d 162, 107 S. Ct. 1714 (1987)............31
Devereaux v. Abbey, 263 F.3d 1070, 1074.75(9th Cir. 2001)............................30
Garcia v. United States, 2015 U.S. Dist. Lexis 92558, civil-08-2241CCC (1st Cir. 2015).. 17, 19
Holloway v. Arkansa, 435 U.S. 475, 490, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978)...........31
Holmes v. South Carolina, 547, U.S. 319, 324, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006).... 30
Houston v. Lack, 487 U.S. 266, 108 S.CT. 2379, 101 L.ED. 245 (1988) .........9, 11, 12, 13, 16
Jacobs v. Delbalso, 2017 U.S. Dist. Lexis 173212 (3d Cir. 2017)..........9, 10, 11, 12 15, 32
Johnson v. Duckworth, 793 F.2d 898, 900-902 (7th Cir. 1986)..........................18
Limone v. Condon, 372 F.3d 39, 44-45 (18t Cir. 2004)..................................30
Mabry v. Johnson, 467 U.S. 504, 507 -08, 81 L. Ed. 2d 437, 104 S. Ct. 2543 (1984).........23
Missouri v. Frye, 556 U.S.
,
132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012)................19
National City Lines Inc. v. LLC Corp., 687 F.2d 1122 (8th Cir. 1982).....
..
:. .:::
.
25
Noble v. Kelly, 246 F. 3d 93 (2d. Cir.), cert. denied, 534 U.S. 886, N. 2, 122 S. Ct. 197, 151 L. Ed.
(2001).....................................................................26, 31
People v. Toscano, 124 Cal. App. 4th 340, 344, 20 Cal. Rptr. Sd 923 (2004) ................24
Perry v. Rushan, 713 F.2d 1447, 1450 (9th Cir. 1983) ..............................19, 26
Pham v. United States, 317 F. 3d 178, 182 (2'' Cir. 2003)..............................16
Pointer v. Texas, 380 U.S. 400, 404, 13 L. Ed. 2d 923, 85 S. Ct. 1065 (1965)............... 31
Purdy v. United States, 208 F. 3d 41 at 45 (2'"' Cir. 2000)..............................18
Roe v. Flores-Ortega,528 U.S. 470, 485, 145 L. Ed. 2d 985, 120 S. Ct. 1029 (2000).........19
Santobeio v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 30 L.Ed. 2d 427 (1971). 22, 23, 24, 25
State v. Lowe, 69 Ohio St. 3d 527, 1994 Ohio 345, 634 ME 2d 616 (1994)................33
Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967)............. 28
Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984)
16, 17, 18, 19, 25
United States v. Bowers, 517 F. Supp. 666, 671(W.D. Penn. 1981)......................21
United States v. Davenport, 775 F.3d 605, 609 (3rd Cir. 2015).......................23,25
United States v. Nolan-Cooper, 155 F. 3d 221, 236 (3rd Cir. 1998)........................23
United States v. Sebetich, 776 2d 412, 420 (3d C. 1985)................................28
Wiggins v. Smith, 539 U.S. 510, 520, 123 S. Ct. 2527, 156 L. Ed. 2d. 471 (2003)...........25
Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967).........27, 31
William v. Taylor, 529 U.S. 362, 413, 146 L. Ed. 2d 389, 120 S. Ct. 1495 (2000)......... 11, 22
STATUTES AND RULES:
42 Pa. C.S.A. § 9545 ...........................................................13
42 Pa. C.S.A § 9545(b)(1)(ii).....................................................13
42 Pa. C.S.A § 9545(b)(2)...............................................13, 14, 15, 33
Fed. R. Crim. P. Rule 11(b)(2)....................................................23
Fed. R. Crim. P. Rule 12.1.......................................................26
OTHER:
Codes of Judicial Conduct Rule 4.1 (A)(8)...........................................36
VI
IN THE
SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI
Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.
OPINIONS BELOW
[ ]
For cases from federal courts:
The opinion of the United States court of appeals appears at Appendix
the petition and is
to
reported at
; or,
[ ] has been designated for publication but is not yet reported; or,
[1 is unpublished.
[ ]
The opinion of the United States district court appears at Appendix
the petition and is
to
reported at
; or,
[1 has been designated for publication but is not yet reported; or,
[I is unpublished.
[ ]
Xi
For cases from state courts:
The opinion R1 the highest state court to review the merits appears at
Appendix
to the petition and is
16
t\ '' 3Z
I?KJ reported at
; or,
[II has been designated for publication but is not yet reported; or,
[ 1 is unpublished.
The opinion of the _____________
appears at Appendix b to the petition and is
; or,
[ ] reported at
[1 has been designated for publication but is not yet reported; or,
b(] is unpublished.
1.
court
JURISDICTION
[ ] For cases from federal courts:
The date on which the United States Court of Appeals decided my case
was
[ ] No petition for rehearing was timely filed in my case.
[ ] A timely petition for rehearing was denied by the United States Court of
Appeals on the following date:
order denying rehearing appears at Appendix
,
and a copy of the
[1 An extension of time to file the petition for a writ of certiorari was granted
to and including
in Application No.
(date) on _____________________ (date)
A______
The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).
M For cases from state courts:
23 Zo g
The date on which the highest state court decided my case was
A copy of that decision appears at Appendix C
[X] A timely petition for rehearing was thereafter denied on the following date:
(2\ c\ .2.3 ?', and a copy of the order denying rehearing
appears at Appendix
[1 An extension of time to file the petition for a writ of certiorari was granted
to and including
Application No.
(date) on
(date) in
A_______
The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).
2.
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Sixth Amendment to the United States Constitution provides, in pertinent
part:
In al criminal prosecution, the accused shall enjoy the right.
the Assistant of Counsel for his defense.
.
.
to have
The Fourteenth Amendment to the United States Constitution provides, in pertinent
part:
No State shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the law.
3.
II
STATEMENT OF THE CASE
--
Amilcar Rivas-Rivera, (hereinafter Petitioner) was charged in multiple
information 50 felonies. These charges arose from a two month spree of burglaries and
theft in Lancaster County and adjoining townships in Pennsylvania in the fall of 2011.
Ultimately, these charges were consolidated into a single prosecution and resolved via
a guilty plea on February 12, 2013. Before Petitioner signed the guilty plea he told trial
counsel Elizabeth Low (hereinafter trial counsel) that he will not plea guilty to five
criminal charges (3 burglaries and 2 attempted burglaries) and a burglary that took
place 23 days after Petitioner's arrest at 735 State Street on November 23, 2011 report
number 1111-025921. Petitioner expressed to trial counsel that he was innocent of them.
Specifically, he claimed that he did not commit the following offenses:
Inf. No. 101/12: Cts. 1, 2, 5, attempt burglary at 904 and the burglary
at 907 State Street.
No. 102/12: Ct. 6, burglary at 720 New Holland Avenue;
No. 102/12: Ct. 40, attempt burglary at 634 New Holland Avenue;
No. 102/12: Cts. 1, 2, 3, burglary at 1019 Buchanan Avenue.
At that moment, trial counsel went to speak with Assistant District Attorney Brown
(hereinafter A.D.A. Brown) regarding what Petitioner had told her. Minutes latter trial
counsel came back to the holding cell and told Petitioner that she can not do anything
about the burglaries but that it was not easy but that she convinced A.D.A. Brown and
that he agreed to withdraw the offenses that Petitioner is innocent of, all Petitioner had
to do was sign the guilty plea first and he would withdraw afterwards. Trial counsel
4.
whent as far as to promise him that what she just told him was true. Petitioner igniéd
the guilty plea in good faith thinking that he had an agreement with A.D.A. Brown.
However, A.D.A. Brown did not fulfill his end of the agreement. In the Court Room
Petitioner was given a on record colloquy, however, the trial court did not ask Petitioner
if there was any promises in order for him to plea guilty. After the trail court accepted
the guilty plea, Petitioner was sentenced to 15 to 30 years in prison. Petitioner told his
trial counsel to appeal. Trial counsel filed a motion for reconsideration, however, she
never raised A.D.A. Brown's breach of the plea agreement, and the Motion was denied.
On February 6, 2014, Petitioner filed a timely pro se PCRA petition raising
ineffective assistance of counsel and the breach of the agreement. Petitioner was
provided a court appointed attorney Mr. Russell Pugh (hereinafter PCRA Counsel). At
the evidentiary hearing on July 11, 2014, Petitioner argued that he signed the guilty
plea believing the advice of his trial counsel. Petitioner also became aware that he was
never charged with the burglary that took place 23 days after Petitioner's arrest at 735
State Street on November 23, 2011 report number 1111-025921.
On October 31, 2014, Petitioner's PCRA petition was denied, thereafter,
Petitioner through his PCRA counsel sought review with the Superior Court of
Pennsylvania on February 17, 2015. At the time that Petitioner's first PCRA petition
was pending, Petitioner, while reading the transcripts of the Evidentiary hearing
became aware that trial counsel had a conversation with A.D.A. Brown about severing
6-1
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t
1
the five criminal charges that he did not want to plea guilty to, however, she- didnot
inform him of this offer. Petitioner tried to get his PCRA counsel to help him perserve
this claim, however, he was ignored. At that time, Petitioner was unable to file anything
with the trial courts of Lancaster County because according to well-establised
Pennsylvania law a Petitioner cannot file a second petition until his first petition has
been resolved. Petitioner's appeal to the Superior Court was denied on June 19, 2015,
thereafter, he sought review with the Supreme Court of Pennsylvania which denied his
Allowance for Appeal on December 8, 2015.
Petitioner then, was instructed by PCRA counsel to file a Habeas Corpus.
Following PCRA counsel's instructions Petitioner filed a Hebeas Corpus with United
States District Court for the Western District of Pennsylvania on January 19, 2016.
Petitioner also filed a second pro se PCRA petition with the trial court of
Lancaster County Pennsylvania on January 19, 2016. In the second PCRA petition
Petitioner raised the following issues:
Ineffective assistance of counsel for not informing [Petitioner] of
the severance of the charges.
Ineffective assistance of counsel for not complying with 4-3.1(a)
of A.B.A Standards.
New Discovered Evidence 9545(a)(2)(vii), News paper article.
On February 18, 2016, Appellant received a Notice pursuant to Pa. R. Crim. P. 907,
where it stated that the second PCRA was going to be denied because there were no
-
-
genuine issues concerning any maferiaFfact,
he wasnot entitled to PCRA relief,-No
purpose would be served any further proceeding. On March 5, 2016, Petitioner
submitted a timely responses. On March 11, 2016, the lower court entered an Order
dismissing Petitioner's second PCRA, concluding that Petitioner's second PCRA was
untimely.
Petitioner filed a Notice of appeal to the Pennsylvania Superior Court on March
22, 2016. Thereafter, Petitioner was directed to file a concise statement of the matters
complained of on appeal. On March 31, 2016, Petitioner filed his statement of
complained of on Appeal asserting the following:
Whether the trial court erred in dismissing [Petitioner's]
[PCRAI petition without a hearing, where [Petitioner's] guilty
plea counsel was ineffective for unlawfully inducing her
client/ [Petitioner] to plea guilty on an illusory agreement that
certain charges would be withdrawn if [Petitioner] sign the
guilty plea; [Petitioner] signed the guilty plea but the charges
were not withdrawn.
Whether guilty plea counsel was ineffective for failing to keep
her client [Petitioner] fully informed of all options through
the proceeding, incompliance with Commonwealth v.
Mickens, 597 A. 2d 1196 (Pa. Super. 1991)(A lawyer has the
duty to "keep the accussed fully informed" of all options
throughout the proceeding") (quoting) Commonwealth v.
Saxton, 519 Pa. 196, 200, 532 A.2d 352(1987)(quoting)
American BarAssociation, Standards, standards for criminal
Justice (A.B.A standards 4-3.1(a), 4- 6.2(a)) where thrial
counsel failed to inform [Petitioner] that he could had plead
guilty to some charges and gone to trial on the charges that
he did not want to plea guilty to.
7.
3. Whether the court erred by not considering the News paper
article that [Petitioner] found as New Discovered Evidence
pursuant to 42 Pa. C.S.A. § 9545(b)(ii)(2), and
Commonwealth v. Castro, 93 A.2d 818 at 822(2014).
On February 21, 2017, the Superior Court issued a memorandum opinion finding that
Petitioner's issues did not merit relief, and affirming the lower court's denial of the
PCRA petition. Specifically, the Superior Court determined that Petitioner's second
PCRA petition was untimely filed. Petitioner filed a petition for allowance of Appeal in
the Pennsylvania Supreme Court on July 21, 2017, which entered an Order denying
Petitioner's allowance of appeal on January 23, 2018. Petitioner filed a timely Petitioner•
for Time Extencion to file Reconsideration on February 5, 2018. The Pennsylvania
Supreme Court granted the Petition on February 22, 2018, giving Petitioner fourteen
(14) days to file his Reconsideration. Petitioner then filed his timely Reconsideration on
March 6, 2018. The Supreme Court denied Petitioner Motion for Reconsideration on
April 23, 2018. This petition follows.
ri
REASON FOR GRANTING THE PETITION
May it Please the Court
I. THE PETITION SHOULD BE GRANTED TO RESOLVE THE WELLDEVELOPED CONFLICT OVER WHETHER THE PENNSYLVANIA LOWER
COURT AND APPELLATE COURTS DECISION DISMISSING PETITIONER'S
SECOND PRO SE PCRA PETITION AS UNTIMELY IS CONTRARY TO
PENNSYLVANIA'S OWN ESTABLISHED SUPREME COURT LAW AND WITH
THIS COURTS HOLDING IN HOUSTON V. LACK,487 U.S. 266,108 S.CT. 2379,
101 L.ED. 245 (1988), REGARDING THE PRISON MAIL BOX RULE?
In the instant case, the Pennsylvania Lower Court and the Appellate Court's
decision dismissing Petitioner's second pro se PCRA petition as untimely is contrary
to Federal law found in Jacobs v. Delbalso, 2017 U.S. Dist. Lexis 173212 (3rd Cir. 2017),
and contrary to this Court's holding in Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379,
101 L.Ed. 245 (1988). It is also contrary from the accepted and usual course of judicial
proceeding and law found in Commonwealth v. Lark, 560 Pa. 487, 746 A. 2d 585, 588
(Pa. 2000)(a second appeal cannot be taken when another proceeding of the same type
is already pending.)
On June 2, 2015, while reviewing the Transcripts for the Evidentiary Hearing
that took place on July 11, 2014, Petitioner became aware of the fact that his trial
counsel had a conversation with former A.D.A. Brown, regarding severance of five
criminal charges that Petitioner did not want to plea guilty to, however, trial counsel
never informed Petitioner of the offer. At the time that Petitioner became aware of
this issue his first PCRA was pending the decision of the Appellat Court. flegárdiñg
this matter, on page seven (7) of its opinion the trial court of Lancaster County
Pennsylvania stated:
"According, at the least, Defendant's Judgment of Sentence became
final on April 10, 2013.Therefore, he had until April 10, 2014, to file
a timely PCRA petition. Thus, the instant Petition was submitted
on February 1, 2016, nearly two years too late."
See Appendix (B) page (7)
Petitioner avers that the statement made by the trial court on page seven (7) is
misleading because it does not contain all the facts. By examining the record this
Court will find that Petitioner filed his first pro se PCRA on February 6, 2014, almost
three months before April 10, 2014, the deadline to file a timely PCRA petition. And
it was after his evidentiary hearing for his first PCRA petition on July 11, 2014, that
Petitioner became aware of the fact that his trial counsel had a conversation with
A.D.A. Brown, regarding severance of the five criminal charges that Petitioner did not
'want to plea guilty to, but never informed Petitioner of the offer. Therefore,
Petitioner's second pro se PCRA petition could not have been filed until the resolution
of review of his first PCRA petition by the highest state court which was the
Pennsylvania Supreme Court which denial was on December 8, 2015. Lark, 746 A.2d
According to the third circuit ruling in Jacobs, supra, Petitioner has shown
"good cause" for not filling his second PCRA petition sooner than he did. Petitioner
10.
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acted according to well-establised Pennsylvania law that provides that a Petitioner
cannot file a second petition until his first petition has been resolved. See Jacobs,
supra, at (footnote number two), where the third circuit stated:
"Jacobs had "good cause" for not filling his second PCRA
petition sooner than he did. Johnson's Affidavit is dated
October 15, 2015. [1 At the time, Jacobs' first PCRA petition
was still pending, and under Pennsylvania law, a Petitioner
cannot file a second petition until his first petition has been
resolved. Commonwealth v. Lark, 560 Pa. 487, 746 A. 2d 585,
588 (Pa. 2000)."
Yet the trial court and the Appellate courts refused to acknowledge the "good cause"
clause and has gone against their own well-established law.
Furthermore, it is of no dispute that "a decision is contrary to clearly
established federal law, as determined by this Court, if the State Court arrives at a
conclusion opposite to that reached by that Court on a question of law or if the State
Court decides a case differently than this Court has on a set of materially
indistinguishable facts" William v. Taylor, 529 U.S. 362, 413, 146 L. Ed. 2d 389, 120
S. Ct. 1495 (2000). In the instant case, Petitioner avers that the trial court's
assertions that his second PCRA petition was submitted on February 1, 2016, is
incorect and contrary to this Court's decision in Houston v. Lack, 487 U.S. 266, 108
S.Ct. 2379, 101 L.Ed. 245 (1988), where this Court held that a Pro se prisoner's appeal
is deemed filed on the date a prisoner signs the document and hands it to the prison
11.
-
authorities for mailing. see Lack. Here inPennsylvai thThird CirütiñJàobs,
supra, at foot-note number two (2) stated:
"Jacobs State Court docket reflects that the petition was filed
on February 3, 2017. However, based on Jacobs's
representation that he submitted the petition on January 27,
2017, this court will apply the prison mailbox rule and use the
earlier date. See Burns v. Morton, 134 F.3d 109, 113 (3rd Cir.
1998); see also Commonwealth v. Jones, 549 Pa. 58, 700 A. 2d
423, 426 (Pa. 1997)(Pennsylvania also applies the prison
Jacobs, 2017 at foot note number two (2)
mailbox rule)."
Contrary to the cases cited above, the Appellate Court without any evidence to
the contrary of the mailing date affirmed the Lower Court's decision dismissing
Petitioner's second PCRA petition as untimely, even though, Petitioner presented the
cover letter of his Second PCRA petition dated January 19, 2016; his Amended
Petition for Post-Conviction Relief dated January 19, 2016, and his letter to the Clerk
of Court dated February 10, 2016, asking for the status of his second PCRA Petition
that he filed on January, all presented here as Exhibit "A". In addition, Petitioner
presented the Lower Courts and the Appellate Court with a copy of his Monthly
Account Statement from the Month of January, 2016, presented here as Exhibit "B".
This piece of evidence was ignored eventhough it shows that the postage fee for the
habeas corpus was deducted on January 21, 2016. Plus, the postage fee deduction for
the mailing of his second PCRA petition was on January 25, 2016. This evidence also,
indicates that the prison mailed Petitioner's second PCRA petition before the deadline
of February 6
,
2016. The Clerk of Courts of Lancaster County received Petitioner's
12.
I
second PCRA petition on or about February 1, 2016. However, before the trial Court
could have found Petitioner's second PCRA untimely, it first had to determine if the
"prison mailbox rule" applied, as established by this Court in Lack, and adopted by
the Pennsylvania Supreme Court in Commonwealth v. Jones, 549 Pa. 58, 700 A.2d
423 (Pa. 1997) ,where it followed the analysis in Lack, and indicated that it was willing
to accept any "reasonably verification" evidence of internal operating procedures
showing the date on which a prisoner deposits the appeal with the prison authorities
may be credited. Along these lines, the court, specified that Cash-Slips, Affidavits, or
evidence of operating procedures may suffice." Jones at 700 A.2d 426. Even if the
Lower Court were right in considering Petitioner's second PCRA filed on February 1.
2016, Petitioner's second PCRA petition would still be timely filed because Petitioner's
sixty day deadline to present this claim was on February 6, 2016.
Next, the trial court on page seven (7) and eight (8) argues that Petitioner does
not invoke any of the three timeliness exeptions under 42 Pa. C.S.A. § 9545, nor the
Sixty date requirement under 9545(b)(2). (See Appendix (B) pages (7) and (8)).
Petitioner avers that the trial court is in error because his claim does fall within the
exception under 42 Pa. C.S. § 9545(b)(1)(ii), mentioned in Lark, at 588. Petitioner
avers that, the fact upon which the claim in his second PCRA petition is predicated
were unknown to him at the time of the Guilty Plea Hearing on February 12, 2013,
because trial counsel failed to communicate the severance offer to him. And he became
aware of the fact on June 2, 2015, while reviewing the Transcripts for the Evidentiary
13.
I
Hearing. To show that he reviewed the Transcripts-- for the Evidentiary Hearing-on
June 2, 2015. Petitioner presents this Honorable Court with a letter that he wrote on
June 3, 2015, to his PCRA Counsel, asking him for a missing page of the transcripts.
See Exhibit "C".
Finally, under Lark, Petitioner must file his second PCRA petition within sixty
days of the date of the order which finally resolved the first PCRA petition, because
this is the first "date the claim could have been presented." 42 Pa. C.S. § 9545(b)(2),
Lark Id at 588. In the instant matter, the Pennsylvania Supreme Court denied
Petitioner's Allowance of Appeal for his first PCRA petition on December 8, 2015.
From this date Petitioner had.sixty days to file his second PCRA which deadline was
on February 6, 2016. Petitioner clearly met the sixty (60) day rule in 42 Pa. C.S.A. §
9545(b)(2) cited in Lark, 746 A.2d 585 (Pa. 2000). Petitioner filed his second PCRA
petition with the prison authorities containing the severance claim on January 19,
2016, fourty-three (43) days from the Pennsylvania Supreme Court's denial, on
December 8, 2015, which makes it timely filed.
When Stating the facts of the case Assistant District Attorney Swinehart on
page six (6) of her brief to the Pennsylvania Superior Court misled the court when
stating:
"The Superior Court of Pennsylvania affirmed the lower Courts
decision on December 29, 2015."
14.
See Exhibit "D"
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-
-
Petitioner avers that this assertion can be proven false by examining the record
and A.D.A Swinehart's statement on page twelve (12) of her Answer to Petitioner's
Habeas Corpus presented as Exhibit "D-1":
"On June 19. 2015, the Superior Court issued a memorandum
affirming the Trial Court's dismissal of the PCRA."
Petitioner avers that A.D.A. Swinehart ommitted the true date of the Superior Court's
dismissal of the first PCRA and the true date of the Supreme Court's denial of
Petitioner's Allowance of Appeal which was on December 8, 2015, to make it seem as
if Petitioner never sought relief with the Supreme Court of Pennsylvania. By doing so,
A.D.A. Swinehart misled the Superior Court into believing that Petitioner's second
pro se PCRA was filed untimely and over the sixty (60) day rule in 42 Pa. C.S.A.
9545(b)(2) cited in Lark, 746 A.2d 588. This statement raises a question; How can the
Superior Court of Pennsylvania affirm the trial Court's decision on December 29, 2015,
when the Supreme Court denied Petitioner's Allowance of Appeal on December 8,
2015? Surely, this statement is misleading and false. Nevertheless, because of this
misleading statement by A.D.A. Swinehart, the Superior Court affirmed its decision
dismissing Petitioner's second PCRA petition as untimely. See Appendix (A)
Therefore, Petitioner asks for this Court to exercise its supervisory power,
where the Pennsylvania Lower Court's and Appellate Court's dismissal is contrary to
well established federal law found in Jacobs v. Delbalso, 2017 U.S. Dist. Lexis 173212
15.
V
Ord Cir. 2017) and in Houston V. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 iJ.Ed 245
(1988).
II. ANOTHER REASON; PETITIONER'S CLAIM THAT TRIAL COUNSEL FAILED
TO INFORM HIM OF THE SEVERANCE OFFER SATISFIES THE TWO PRONGS
OF STRICKLAND V. WASHINGTON 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed. 2d 674
(1984) TEST.
It is of no dispute that the Sixth Amendment right to effective assistance of
counsel extends to the consideration of plea offers that lapse or are rejected. "The
decision whether to plea guilty or contest a criminal charges is ordinarily the most
important single decision in a criminal case.
.
.
[and] counsel may and must give the
client the benefit of counsel's professional advice on this crucial decision." Boria v.
Keane, 99 F. 3d 492, 496-97 (2d Cir. 1996).
The Strickland's "strong presumption" that counsel has acted in a professional
competent manner is of limited relevance to the guilty plea context because plea advice
usually does not implicate an attorneys strategic-decision making. There can
be no appropriate strategic reason for failing to inform a client of the facts and
circumstances relevant to the plea decision. Counsel has a Constitutional obligation
to adequately inform his client about the considerations relevant to his client's
decision to accept or deny a plea offer. See Pham v. United States, 317 F.3d 178, 182
(2d Cir. 2003). In the instant matter, Petitioner avers that a "confession made in court
16.
-
is of greater effect than any other proof." (Legal Maxim). At the Evidentiary Hearing
on July 11. 2014, trial counsel was asked the following:
Q: Now, on this specific day of the guilty plea, you have the conversation
in the holding cell. Did you on that day go talk to Mr. Brown about perhaps
nolle prossing some counts on there or perhaps severing some counts?
A: It's possible.
Q: Did you tell Mr. Rivas-Rivera?
The Court: by severing you mean plead guilty to some and ask for a trial
on others?
Mr. Pugh: or deal with them otherwise, some other way. Thank you.
Q: by Mr. Pugh: when you return to the cell, did you tell Mr. Rivas-Rivera
that you had, in fact, either via a nolle pros or some sort of method,
removed some of the counts from the guilty plea proceeding?
A: I don't believe so.
(Page Six (6) at line 17 through line 25 and page Seven (7) at line 1 through line 13
of the Notes of Testimony of PCRA Evidentiary Hearing hereinafter Exhibit "E".)
Petitioner avers that this is sufficient proof to meet both prongs of the
Strickland test because trial counsel equivocally confessed to having a conversation
with A.D.A Brown, regarding severance but never informed Petitioner of the offer. See'
Garcia v. United States, 2015 U.S. Dist. Lexis 92558, civil082241CCC (1st Cir. 2015),
where the First Circuit Court found that counsel's candid admission of his failure to
advise his client of the details of the plea offer received from the government met both
prongs of the Strickland test. The Court held that trial counsel was ineffective in
17.
I
11
failing to advise him on the details of the plea offers received from the government,the applicability and comparison of the sentencing guidlines in a guilty plea or after
trial conviction setting, and, in failing to explain to him the difference between
pleading guilty and going to trial as well as the consequences of each with respect to
prison time, all of which caused him prejudice.
By examining Exhibit "E", this Honorable Court will find that the first prong
of the Strickland test has been satisfied as trial counsel failed to inform Petitioner of
the severance offer. This offer was available during the offer window and it was trial
counsel's duty to inform Petitioner of it because Petitioner had the right under the
Sixth Amendment to be informed of the offer, apart from being informed Petitioner
surely had the right to be involved in the decision-making process regarding the
agreement's ultimate acceptance or rejection. See Johnson v. Duckworth, 793 F.2d
898, 900-902 (7th Cir. 1986); Purdy v. United States, 208 F.3d 41 at 45 (2nd Cir.
2000)(the ultimate decision whether to plea guilty must be made by the defendant.)
Contrary to Duckworth and Purdy, trial counsel chose to reject the severance offer
without consulting Petitioner. By doing so, trial counsel waived his Constitutional
right to have a trial for the five criminal charges that he did not want to plea guilty
to. This Court when confronted with this issue in Brookhart v. Janis, 384 U.S. 1, 7, 16
Led. 2d 314, 86 S. Ct. 1245 (1966) held:
"We hold that the constitutional rights of a defendant cannot
be waived by his counsel. . ."
E1!
Janis, sura, at 7
I
Trial counsel also waived Petitioner's due process right to a fair opportunity to defend
against the State's accusations. See Perry v. Rushan, 713 F.2d 1447, 1450 (9th Cir.
1983) "The right of an accused in a criminal trial to due process is, in essence, the right
to a fair opportunity to defend against the State's accusations." (quoting) Chambers v.
Missisipi 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). This Court in
Missouri v. Frye, 556 U.S. _ , 132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012) held:
"This court now holds that, as a general rule, defense counsel has the
duty to communicate formal offers from the prosecution to accept a plea
on terms and conditions that may be favorable to the accused," ".
When the defense counsel allowed the offer to expire without advising
the defendant or allowing him to consider it, defense counsel did not
render the effective assistance the Constitution requires."
Regarding prejudice, the second prong of the Strickland test. The Court in
Garcia, supra, held that the second prong was met because trial counsel's candid
admission of his failure to thoroughly discuss with his client the ramification
alternatives of pleading guilty versus going to trial presents serious concerns. In
Strickland, this Court held that the prisoner need only demonstrate a "reasonable
probability" that the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome. Id at
694. In Roe v. Flores-Ortega,528 U.S. 470, 485, 145 L. Ed. 2d 985, 120 S. Ct. 1029
(2000)(cert. gran.) this Honorable Court held that "to satisfy the 'prejudice'
requirement [of Strickland], the defendant must show that there is a reasonable
19.
I
probability that, but for counsel's errors, he would not have pleaded guilty and would—
have insisted on going to trial." In the instant matter an examination of Exhibit "F",
page 48 at line 22 through line 25 and page 49 at line 1 through line 11, will show that
Petitioner would have accepted the severance offer because he is innocent of the five
criminal charges.
In her brief to the Superior Court of Pennsylvania, A.D.A Swinehart on page
fifthteen (15) erroneously stated:
"Guilty plea counsel was not ineffective when guilty plea counsel
informed Defendant of his options on this case."
See Exhibit "G"
This statement is false and misleading. It is contrary to Trial counsel's own admission
at the PCRA Evidentiary Hearing. Trial Counsel equivocally confessed that she did
not inform Petitioner the offer/option of severing the five criminal charges. See Exhibit
"E". Therefore, any other contentions that trial counsel informed Petitioner of the
severance offer should be dismissed by this Court as false and misleading.
Petitioner was not aware of the severance offer, instead he believed trial counsel
when she told him that she can not do anything about the burglaries but that it was
not easy but that she convinced A.D.A Brown and that he agreed to withdraw the
offenses that Petitioner is innocent of, all Petitioner had to do was sign the guilty plea
first and he would withdraw afterwards. See Exhibit "H" page 36 at line 17 through
21 and page 37 at line 13 though 24. Petitioner being a layman in the understanding
20.
of the law, trusted and relied upon trial counsel's advice which planted in his mind
the belief that the only way to have these offenses withdrawn was to sign the guilty
plea. Petitioner signed the guilty plea with clean hands trusting the words of trial
counsel and answered "Yes" to the trial court's questions, not knowing that once he
sign the guilty plea that he would be pleading to the five criminal charges that he did
not want to plea guilty to. See Exhibit "I" page 47 at line 14 through 16. Trial counsel
went as far as to promise Petitioner that former A.D.A. Brown agreed to withdraw.
See Exhibit "J" page 49 at line 1.
Concerning trial counsel's statement to Petitioner, the trial court on page eight
in his opinion stated:
"To the extent that Defendant alleges that his guilty plea resulted
from some sort of collusion between his Guilty Plea Counsel and
the Commonwealth. I concluded that that Claim utterly without
See page (8) of Appendix (B)
merit."
Respectfully, Petitioner avers that a claim has arguable merit if counsel's acts or
omissions conflict with a constitutional guarantee, statute, rule of procedure, or
established precedent. Therefore, this claim has arguable merit because "the Sixth
Amendment right to the assistance of counsel includes the right to be assisted by
competent counsel. If counsel fails to imform his client of a proposal, prior to adversary
criminal proceedings, and the client is prejudiced, fairness and due process dictate
relief." See United States v. Bowers, 517 F. Supp. 666, 671 (W.D. Penn. 1981).
Therefore, this Honorable Court may entertain Petitioner's petition.
21.
It
III. THE DECISION OF BOTH PENNSYLVANIA'S LOWER COURTS AND- OF THE
APPELLATE COURTS WARRANTS REVIEW FOR ANOTHER REASON; TRIAL
COUNSEL'S ADVICE TO PETITIONER ALLOWED THE GUILTY PLEA TO REST
UPON AN AGREEMENT, SUBJECT TO ENFORCEMENT UNDER DUE PROCESS.
As it was mentioned above that "a decision is contrary to clearly established
federal law, as determined by this Court, if the State Court arrives at a conclusion
opposite to that reached by that Court on a question of law or if the State Court
decides a case differently than this Court's has on a set of materially indistinguishable
facts" William v. Taylor, 529 U.S. at 413. In the instant matter, Petitioner avers that
the trial court statement:
"To the extent that Defendant alleges that his guilty plea resulted
from some sort of collusion between his Guilty Plea Counsel and
the Commonwealth. I concluded that that Claim utterly without
See page (8) of Appendix (B)
merit."
is contrary to federal law and this Court's decision in San tobello v. New York, 404
U.S. 257, 262, 92 S. Ct. 495, 30 L.Ed. 2d 427 (1971), because trial counsel's advice to
Petitioner allowed the plea to rest upon an agreement subject to enforcement under
due process. In Santobello, this Honorable Court granted certiorari and announced
that when a guilty plea rest in significant part "on a promise or agreement of the
prosecutor, so it can be said to be part of the inducement or reconsideration, such
promise must be fulfilled." 404 U.S. 262. In the instant matter, just like San tobello
who pleaded guilty thinking he had bargained for a specific prosecutorial sentencing
recommendation which was not ultimately made and where the prosecutor argued
22.
that there was nothing in the record to support San tobello's claim of a jiothis, butnever contested that such a promise was made. 404 U.S. 259. Petitioner, signed the
guilty plea believing that the prosecutor was going to fulfill his end of the agreement.
See Exhibit "H". However, because the agreement was never put in the record nor his
trial counsel made the court aware of the agreement, neither did the trial court when
conducting the on record colloquy asked Petitioner if there was any promises in order
for him to plea guilty, which according to Fed. R. Crim. P. Rule 11(b)(2), the court had
to ask Petitioner if there was any promises or agreements made to him. Former A.D.A.
Brown had the envantage to breach its part of the agreement, leaving Petitioner to
plea guilty on a false premise. Petitioner avers that the guilty plea implicates the
Constitution, tranforming the plea agreement from a "mere executive agreement" into
a binding contract. See Mabry v. Johnson, 467 U.S. 504, 507-08, 81 L. Ed. 2d 437, 104
S. Ct. 2543 (1984). Therefore, "Strict compliance with the terms of a plea agreement
is not only vital to the efficient function of our criminal justice system, but also
required to preserve the intergrity of our Constitutional rights." See United States v.
Nolan-Cooper, 155 F.3d 221, 236 (3rd Cir. 1998) (commenting on Santobello 404 U.S.
at 262- 63). Consistant therewith, a "plea agreement, although arising in a criminal
context, are analyzed under contract law standards." United States v. Davenport, 775
F.3d 605, 609 (3rd Cir. 2015). In Mabry, supra, this court followed Santobeio and held
that "[Wihen the prosecutor breaches its promise with respect to an executed plea
agreement, the defendant pleads guilty on a false premise, and hence his conviction
23.
cannot stand. (Syllabus). In Santobeio, Justice Douglas, concurring, joined the opinionof the Court, and expressed the view that where a "plea bargain" was not kept by the
prosecutor, the sentence must be vacated and the State court should decide in light of
the circumstances of each case whether due process required (1) that there be specific
performance of the plea bargain, or (2) that the defendant be given the option to go to
trial on the original charges, the defendant's preference to be given considerable, if not
controlling, weight in choosing the appropriate remedy. The San tobello case provides
two available remedies at law for the breach of Petitioner's agreement: withdrawal of
the plea and specific performance. See, Santobello, 404 U.S. at 263. However, "once,
the plea agreement has been made, the government does not have to endorse its terms
"enthusiastically", [1 but it is expected to "adhere strickly to the terms of the bargain
it strikes," [1 and the [state] will hold the government to that bargain." Davenport,
775 F.3d at 609. Therefore, since Petitioner has already fulfilled his obligation under
the plea agreement when he signed the guilty plea first, he has "paid in a coin that
the state cannot refund." See Carter v. McCarthy, 806 F. 2d 1373, 1377 (9th Cir. 1986).
"Where a plea agreement is breached, the purpose of the remedy is, to the extent
possible, to "repair the harm caused by the breach." See, Buckey v. Terhune, 441 F.3d
688, 699, 2006 U.S. App. Lexis 6612 (9th Cir. 2006) (quoting) People v. Toscano, 124 Cal.
App. 4th 340, 344, 20 Cal. Rptr. 3d 923 (2004). "That harm can best be addressed by
holding the State to its agreement and affording [Petitioner] the benefit of his bargain.
Thus, [Petitioner] is entitled to specific performance of the plea agreement: the
24.
withdrawal of the five criminal charges." Buckey, 441 F.3d at 699. Therèfore, for thinterest of justice and recognition of the duties of the prosecutor, Petitioner asks this
Court to hold the Prosecutor to its agreement and to declare that Petitioner is entitled
to the plea agreement. See Santobeio, 404 U.S. at 268.
N. THE DECISION OF BOTH PENNSYLVANIA'S LOWER COURTS AND OF THE
APPELLATE COURTS WARRANTS REVIEW FOR ANOTHER REASON; THE
FAILURE OF TRIAL COUNSEL TO INVESTIGATE SEVERAL DEFENSES
BEFORE DECIDING TO PLEA PETITIONER GUILTY VIOLATED PETITIONER'S
SIXTH AND FOURTEENTH AMENDMENT RIGHT, OF THE FEDERAL
CONSTITUTION.
This Court has held that the Sixth Amendment, as incorporated by the
Fourteenth Amendment, guarantees criminal defendants the right to the "effective
assistance of counsel." See Wiggins v. Smith, 539 U.S. 510, 520, 123 S. Ct. 2527, 156
L. Ed. 2d. 471 (2003). The right imposes upon counsel the duty to investigate potential
avenues of defense and to present those arguments that serve the defendant's interest.
Strickland 466 U.S. at 691 (counsel has a duty to make reasonable investigation or to
make a reasonable decision that makes particular investigations unnecessary.) The
duty to investigate exist even if counsel thinks the particular avenue in question offers
little chance of leading to a successful defense.
Petitioner avers that "as a rule, a defenition which declares what a term means,
is binding upon a court." National City Lines Inc. v. LLC Corp., 687 F.2d 1122 (8th Cir.
Nd
I
p
1982). Therefore, according to black letter law, an alibi is "[a] defense bd on the
physical impossibility of defendant's guilt by placing defendant in a location other
than scene of crime at all relevant times. See, Black law Dictionary Eigth Ed. Page
79; also see, Fed. R. Crim. P. Rule 12.1 and Noble v. Kelly, 246 F. 3d 93 (2d.
Cir.), cert. denied, 534 U.S. 886, N. 2, 122 S. Ct. 197, 151 L. Ed. 2d 139 (2001)(defining
alibi as defense based on physical impossibility of defendant's guilt by placing
defendant in location other than scene of crime at all relevant times). In the instant
matter, trial counsel failed to investigate Petitioner's alibi defense that placed him at
another county on the date of the offense and on the date after the offense occurred.
Trial counsel had in her posession the face-book conversation between his codefendant and Petitioner, presented here as Exhibit "K". By examining Exhibit "K",
this Court will find that the Face-Book conversation proves that Petitioner was at
York County with his former girlfriend, not at Lancaster County on September 28,
2011, which is the same date that the attempted burglary occurred at 634 New
Holland Ave, (pages 1 and 2) and that on the next day on September 29, 2011, he was
still at York County. See Page 3 of Exhibit "K". It is important to mention that this
offense is one of the offenses that the former A.D.A. Brown agreed to withdraw.
Petitioner certaintly had the right to present this alibi defense at trial. See
Perry, 713 F.2d at 1450 "The right of an accused in a criminal trial to due process is,
in essence, the right to a fair opportunity to defend against the State's accusations."
(quoting) Chambers, 410 U.S. at 294. This right to present a defense stems from both,
go
-
-
-
the right to düprocess provided by th F5iirteenth Amendment, se
h.thbéifd. at
294 and the Sixth Amendment. See Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct.
1920, 18 L. Ed. 2d 1019 (1967). However, Petitioner was deprived of this right
when trial counsel failed to inform him of the severance offer discussed above. At the
evidentiary hearing for Petitioner's first PCRA, trial counsel admitted that she was
aware of this alibi defense but failed to give any reasonable basis for failing to
investigate Petitioner's alibi. See Exhibit "L" page 20 at line 7. At the very least, trial
counsel should have undertaken a reasonable investigation of Petitioner's alibi
defense even if she believed that the alibi did not offer a successful defense. Yet trial
counsel never investigated Petitioner's alibi defense for the 634 New Holland Ave.
attempted burglary. If trial counsel would have informed Petitioner of the severance
offer, Petitioner would have gone to trial and is more likely that the jury would have
found Petitioner not guilty of this offense.
Not only did trial counsel fail to investigate Petitioner's alibi defense but she
also failed to investigate and present the witness' testimony from the 907 State Street
burglary who saw two hispanic males walk up 907 State Street residence. See Exhibit
"M". It is important to mention that this offense is another of the offenses that fomer
A.D.A. Brown agreed to withdraw. Trial counsel was aware that there was never a
line up performed, nor a photo array shown to the witness. in fact trial counsel knew
that the witness never identified petitioner nor his co-defendant as the burglars.
Neither Petitioner nor his co-defendant admitted to this burglary.
27.
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The only peice of "evidence" that the prosecution has used throughout this case
is the statement of detective Shultz of Manheim County Police Department, who
charged Petitioner and Co-defendant with the 907 State burglary simply because
detective Toby Hickeys of Lancaster County Police Department informed him that
Petitioner and his co-defendant admitted to this burglary. See last page of Exhibit
"M" However, detective Shultz should have undertaken an independent investigation
because besides detective Toby Hickey's conflicting statement, he lacked any other
evidence that would tie Petitioner and his co-defendant to this burglary. See United
States v. Sebetich, 776 2d 412, 420 (3rd C. 1985)(stating that line-up or similar
procedure should "be employed whenever necessary to ensure the accuracy and
reliability of identification"); see also Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct.
1967, 18 L. Ed. 2d 1199 (1967). The Statement made by dectective Toby Hickey can be
proven false by examining the eye witness testimony, Petitioner's identification and,
the identification of the co-defendant. According to the eye witness' testimony he saw
two hispanic males in their late 20's early 30's about 6'0"-62", both with clean faces
and short haircut, however, Petitioner is a 5'2" or shoter hispanic male see Exhibit
"N". And the only co-defendant who was charged with this burglary is not hispanic, he
is a white male with blond hair and blue eyes. See Exhibit "0". The eye witness saw
the burglars drive an old red pick up truck, however, Petitioner owned and drove a
1989 Mercedes Benz with distinuishable characteristics. See Exhibit "P". The eye
witness had ample opportunity to view the two hispanic males, he looked directly at
RI
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the two hispanic males (who was in close proximity), paid a high degree of alteñtion
and gave a detailed description. If Petitioner and his co-defendant would have
admitted to this burglary as the detective claims, the eye witness testimony would
have corraberated with their statement. The eye witness would have identified
Petitioner as a 5'2" hispanic male of dark complection with dark facial hair and, his
co-defendant as a white male with blond hair and blue eyes. Both driving in a 1989
Mercedes Benz, not a red pick up truck. Furthermore, detective's statement
contradicts the fact that at the guilty plea hearing former A.D.A Brown told the trial
court that Petitioner wore a mask and gloves See Exhibit "Q". This statement is
confirned by A.D.A Swinehart's statement in her answer to Petitioner's petition for
habeas corpus. See Exhibit "Q1". These statements point to the fact that it would
have been impossible for the eye witness to identify Petitioner because Petitioner wore
a mask and it would have been imposible for Petitioner to be the Person who
burglarized 907 State Street because the burglar left a smoged finger print. See third
page of Exhibit "M". In addition, the burglaries that Petitioner committed were all
night-time burglaries, however, by examining Exhibit "M", this court will find that the
907 burglary is a day time burglary. Detective Shultz charged Petitioner and his codefendant with this burglary solely on detective Tobey Hickey's statement that was
based on a suspicion because Petitioner and his co-defendant burglarized several
homes around 907 residence. However, "evidence sufficient to implicate an accused in
a crime must be something more than evidence showing remote connection that
29.
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merely raises a suspicion of guilty intention
substituted for proof
.
.
.
.
.
.
mere suspicion could not be
guilt must be proven and not merely
conjectured."Commonwealth v. New, 47 A.2d 450 (Pa. Supreme Court 1946). In other
words, "[tihe law requires not conjecture; but certainty." Conffin v. Ogden, 85 U.S.
120, 124 (1874).
Petitioner avers that by examining Exhibit "N", this Court will conclude that
Detective Toby Hickey's statement is false and that if trial counsel would have
conducted an investigation she would have discovered that such statement violates
Petitioner's "clearly established" due process right not to be subjected to criminal
charges on the basis of deliberately fabricated false evidence by the government, this
includes a frabricated conversation in a police report that would appear to be false
information. See Atkins v. County of Riverside, 151 Fed. Appx. 501, 506, 2005 U.S.
App. Lexis 19928 (9th Cir. 2005)(citing) Limone v. Condon, 372 F.3d 39, 44-45 (1st Cir.
2004)(quoitng) Devereaux v. Abbey, 263 F.3d 1070, 1074-75(9th Cir. 2001).
As it has been squarely held by majority of jurisdictions, Petitioner had the
right to present each of the above outlined factors as a defense. The Constitution of
the United States guarantees criminal defendants a meaningful opportunity to
present a complete defense. See, Holmes v. South Carolina, 547, U.S. 319, 324, 126 S.
Ct. 1727, 164 L. Ed. 2d 503 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690, 106
S. Ct. 2142, 90 L. Ed. 2d 636 (1980; see California v. Trombetta, 467 U.S. 479, 485,
104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984) (due process); Chamber v. Mississippi, 410
Ell
0
U.S. 284, 294, 93 S. Ct. 1038, 35 L.Ed. 2d 297 (1973) (compulsoryprocess).- This
Constitutional right to present a complete defense includes the right to present
evidence, including an alibi defense and, the testimony of witness. See Noble v. Kelly,
246 F. 3d 93 (2d Cir.), Cert. denied, 534 U.S. 886, 122 S. Ct. 197, 151 L. Ed. 2d 139
(2001)(defining alibi as defense based on physical impossibilty of defendant's guilty by
placing defendant in a location other than the scene of crime at all relevant
times); Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019
(1967)(the Constitutional right to present a complete defense includes the testimony
of witness). The Sixth Amendment also guarantess a defendant the right to be
confronted with the witness against him. This guarantee, extends against the State
by the Fourteenth Amendment, including the right to cross-examine witness. See Cruz
v. New York, 481 U.S. 186, 187, 95 L. Ed. 2d 162, 107 S. Ct. 1714 (1987)(quoting)
Pointer v. Texas, 380 U.S. 400, 404, 13 L. Ed. 2d 923, 85 S. Ct. 1065 (1965). However,
trial counsel did nothing but plead Petitioner guilty and sentenced to Fifteen (15) to
Thirty (30) years eventhough the evidence point toward his actual innocence. It is to
say that, trial counsel relied only on her presence to satisfy Petitioner's guaranteed
right to be represented by counsel. However, "the mere physical presence of an
attorney does not fulfill the Sixth Amendment guarantee when the advocate's have
effectively sealed his lips on crucial matters." Holloway v. Arkansa, 435 U.S. 475, 490,
98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978). Petitioner avers that trial counsel's actions,
31.
p
inaction and omissions manifested a disregard for rules, Law and the truth Which
undermined United State judicial System.
V. THE PENNSYLVANIA APPELLATE COURTS DECISION WARRANTS
REVIEW FOR ANOTHER REASON; PETITIONER'S SECOND CLAIM
REGARDING NEW DISCOVERED EVIDENCE IS TIMELY FILED PURSUANT TO
THE PENNSYLVANIA SUPREME COURT DECISION IN COMMONWEALTH V.
LARK,746 A.2D 585 (PA. 2000).
Petitioner avers that his second claim concerning the new discovered evidence
in the form of a news paper article see Exhibit "R" is timely filed pursuant to
Commonwealth v. Lark, 746 A.2D 585 (Pa. 2000). Where the Pennsylvania Supreme
Court held that "a second appeal cannot be taken when another proceeding of the same
type is already pending." Lark, 746 A.2d at 588.
Petitioner discovered the news paper article on August 13, 2015, during the
time his first PCRA petition was pending the decision of the Pennsylvania Supreme
Court. Therefore, he has shown "good cause" for not filling his second PCRA petition
sooner than he did. Petitioner acted according Pennsylvania law that provides that a
Petitioner cannot file a second petition until his first petition has been resolved. See
Jacobs, at foot-Note number two.
Finally, under Lark, Petitioner must file his second PCRA petition within sixty
days of the date of the order which finally resolved the previous PCRA petition,
because this is the first "date the claim could have been presented." 42 Pa. C.S. §
32.
1"
9545(b)(2), Lark Id at 588. As it was mentioned above, the Pennsylvania Sipethe
Court denied Petitioner's Counseled Allowance for Appeal on December 8, 2015. From
this date Petitioner had sixty days to file his second PCRA which deadline was on
February 6, 2016. Petitioner clearly met the sixty (60) days rule in 42 Pa. C.S.A. §
9545(b)(2) mentioned in Lark, 746 A.2d 585 (Pa. 2000). Petitioner filed his second
PCRA petition with the prison authorities containing this claim on January 19, 2016,
fourty-three (43) days from the Pennsylvania Supreme Court denial, on December 8,
2015, which makes it timely filed.
Petitioner avers that when comparing the news paper article and the eye
witness of the 907 State Street burglary. This Court will concede that both modus
operandi are identical. See Exhibit "S". Here in Pennsylvania, "[it is well established
that evidence which tends to show that the crime for which an accused stands trial
was committed by someone else is relevant and admissible."[ I In this regard, "the
defense may introduce evidence that someone else committed a crime which bears a
highly detailed similarity to the crime with which defendant is charged.[ I"
Commowealth v. Weiss, 622 Pa. 663, 81 A. 3d 767, 807 (Pa. Supreme Court 2013). For
this very reason Petitioner avers that the news paper article is admissible because the
modus operandi is a way of proving the burglars' identity. See State v. Lowe, 69 Ohio
St. 3d 527, 1994 Ohio 345, 634 ME 2d 616 (1994), (syllabus) ("To be admissible to
prove identity through a certain modus operandi, other-acts evidence must be related
to and share common features with the crime in question.
33.
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VI. ANOTHER REASON WHY THE APPELLATE COURTS DECISION
WARRANTS REVIEW; THE LOWER COURT FINDINGS AND THE DISTRICT
ATTORNEY'S ASSERTIONS MISLED THE APPELLATE COURTS.
At the evidentiary hearing on July 11, 2014, the prosecutor intended to
implicate Petitioner's second co-defendant who's name is Tyson Dupree (not DePugh)
in the 907 State Street burglary simply because he is a hispanic male. However,
Petitioner stated that she cannot implicate Tyson Dupree because he was not the codefendant who was charged by detective Hickey stated that Petitioner and his codefendant admitted to the burglary. The trial court agreed with Petitioner in this
matter. See Exhibit "T" (page 47 at line 17 and page 48 at line 1- 22). Tyson Dupree's
description does not fit the description of the two hispanic males. See Exhibit "T-1".
Such assertions fall outside the four corners of the affidavit of probable cause and of
the charging information, therefore, any other contentions that Petitioner second codefendant (Tyson Dupree) was involved in the 907 State Street burglary and that he
(Tyson Dupree) fits the identification given by the eye witness of one of the hispanic
males should be dismissed by this Court as false and misleading.
Regarding the proceedings of Petitioner's second PCRA the trial Court and
Prosecutor both of Lancaster County Pennsylvania, has misintrepreted the facts to
mislead the Appellate Courts. For example when commentating on claim two (2) which
is the severance claim in this Petition for Certiorari, the Honorable Judge Wright
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sitting at the trial court of Lancaster County Pennsylvania, on pages 5 and 6 of his
opinion said:
"Claim of error [1 and 2 have been previously litigated because
they were squarely addressed and directly rejected by both the
Honorable Judge Madenspacher and by the Superior Court as part
of [Petitioner's] initial PCRA Petition." (opinion at pg. 5 and 6).
See Appendix (B) pages 5 and 6
On pages 16 and 17 of her brief to the Superior Court of Pennsylvania presented here
as Exhibit "U", A.D.A Swinehart reiterated the Judge's statement above. However,
this assertion can be proven false by examining A.D.A Swinehart's statement on page
twenty-seven of her Answer to Petitioner's Habeas Corpus:
"Gound Two through Five, seven through Ten, and Twelve
through Thirteen are not exhausted since Petitioner never raised
a claim in state court regarding Trial Counsel not informing
See Exhibit "U-1"
Petitioner of severance"
This statement by A.D.A. Swinehart, proves that the severance claim was never raised
in Petitioner's first PCRA. The statement made by the Honorable Judge Wright is
false and misleading because it miled the Superior Court into believing that the
severance claim has been raised.
Furthermore, Judge Wright stated:
"assuming, arguendo, the [Petitioner] did not raise [] claim two (2)
in his initial PCRA Petition, [Petitioner] absolutely could have done
so because the allegations of ineffective assistance occurred at the
Guilty Plea stage and thus could have been raised in [Petitioner's]
See Appendix (B) page 6
first PCRA Petition."
35.
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Again on page 17, of her brief to the Superior Court, A.D.A. Swinehart again reiterated
this statement. See Exhibit "U". However, this statement is false and misleading
because Petitioner learned of the severance offer on June 2, 2015, while reviewing the
Transcripts of the Evidentiary Hearing that took place on July 11, 2014. This is a
continueous act by the trial Courts and A.D.A. Swinehart. A.D.A Swinehart commited
fraud upon the court by quoting case law that does not exist when quoting
Commonwealth v. Fowler, 670 A.2d 1153 (Pa. Super. 1996). The citation used by
A.D.A. Swinehart when quoting Commonwealth v. Fowler, 670 A.2d 1153 (Pa. Super.
1996) belongs to Commonwealth v. Restituyo and Commonwealth v. Walk, 670 A.2d
1153. See Exhibit "V". Further, these two cases do not refer to a tactical basis. The
Appellate Courts never made a proper decision on the true matter of this case due to
the trial Court's and the A.D.A. Swinehart disregard for rules, law and the truth.
Respectfully, Petitioner avers that his 14th Amendment right to the equal protection
and to due process of law has been violated by Judge Wright and A.D.A. Swinehart
when they knowingly used misleading statements to keep him from the relief that he
is entitled to. Respectfully, Judge Wright's actions run afoul of this Court's well
established State and federal law. His actions also runs afoul of the Codes of Judicial
Conduct Rule 4.1 (08) that states: (A)"a judge or a judicial candidate shall not".
.(8)"Knowingly or with reckless disregard for the truth make any false or misleading
statements." Petitioner avers that he has been targeted by the lower court and the
prosecutor to pay for crimes that he did not commit simply because his co-defendant
36.
Justin Jenkins was sentenced to nine months of house arrest and eight years of
probation when he was supposed to serve a sentence of 10 to 20 years of incarceration.
See Exhibit "W". And also because the detectives failed to investigate two other coconspirators who Petitioner told them about. See Exhibit "X". Petitioner avers that
the disparity of treatment has violated his rights which are given to him by the
Constitutional of the United States such rights cannot be taken away or violated by
any statutes, ordinance or Court decision that runs afoul of the Constitution.
CONCLUSION
Based upon the fore going points and authorities, Petitioner respectfully requests
for certiorari to be granted on this issues of fundamental importance, and the decision
of the Court below reveresed.
The petition for a writ of certiorari should be granted.
Respectfully submitted,
Date:
37.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.