Petition for Writ of Certiorari — Eric Williams, Petitioner v. Pennsylvania

Supreme Court briefSep 20, 2018

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IN THE

SUPREME COURT OF THE UNITED STATES

ERIC WILLIAMS

PETITIONER

(Your Name)

vs.

COMMONWEALTH OF_PENNSYLVA

SPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

SUPREME COURT OF PENNSYLVANIA

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

ERIC WILLIAMS

(Your Name)

1000 Follies Road

(Address)

Dallas, PA 18612-0286

(City, State, Zip Code)

(Phone Number)

QUESTION(S) PRESENTED

DID THE PENNSYLVANIA SUPERIOR COURT AND COMMON PLEAS

COURT ABUSE THEIR DISCRETION BY DENYING WILLIAMS AN

EVIDENTIARY HEARING TO REVIEW THE MERITS OF HIS

CLAIMS OF ACTUAL INNOCENCE RESULTING FROM NEW EVIDENCE

OF RECANTED STATEMENTS OF RESPONDENT'S KEY WITNESS,

HAROLD JACKSON?

WAS WILLIAMS' FOURTH POST CONVICTION RELIEF ACT (PCRA)

PETITION FILED WITHIN THE 60 DAY TIME PERIOD EXCEPTION

ALLOWED BY PENNSYLVANIA'S STATUTE 42 PA C.S. §9545(B)

(2) TO BE ELIGIBLE FOR REVIEW?

WAS IT AN ABUSE OF DISCRETION TO DENY EVIDENTIARY

HEARING ON THE MERITS OF WITNESS'S RECANTATION STATEMENT

WHEN WILLIAMS HAD NO REASONABLE WAY OR METHOD OF

RETAINING AND PRESENTING THE NEW EVIDENCE AT AN EARLIER

TIME?

WAS IT AN ABUSE OF DISCRETION FOR THE SUPERIOR COURT

TO DENY AN EVIDENTIARY HEARING ON THE RECANTION OF

KEY WITNESS WHERE THERE HAD BEEN NO PROCEDURAL ERROR

MADE BY WILLIAMS WHEN EXPLAINING HIS DUE DILIGENCE OF

TRYING TO PRESENT THE EVIDENCE TO THE COURT AT AN

EARLIER TIME AND THE REASON HE COULD NOT DO SO?

SHOULD THE PCRA AND APPELLATE COURTS BE OBLIGATED

TO TREAT PCRA PETITION AS ONE FOR HABEAS CORPUS REVIEW

OR RELIEF TO RECANTATION EVIDENCE OF RESPONDENT'S

PRIMARY WITNESS TO THE CRIME IF THERE IS NO PCRA

EVIDENCE TO RULE ON THE MERITS IN ORDER TO COMPLY WITH

CLEARLY ESTABLISHED LAW ARTICULATED IN PRECEDENTS BY THE

UNITED STATES SUPREME COURT?

DIE THE PENNSYLVANIA SUPREME COURT ERR AND ABUSE ITS

DISCRETION THEREBY DENYING WILLIAMS LEAVE TO FILE A

PETITION FOR ALLOWANCE OF APPEAL NUNC PRO TUNC SO THAT

HE MAY EXHAUST HIS APPELLATE REMEDIES DUE TO HIS FIRST

FILING FOR WRIT OF CERTIORARI TO THIS UNITED STATES

SUPREME COURT AS RESULT OF THE HISTORICAL NOT OF THE

PENNSYLVANIA SUPREME COURT'S JUDICIAL ADMINISTRATIVE

ORDER INCORPORATED WITHIN PENNSYLVANIA RULE OF APPELLATE

PROCEDURE, RULE 1114?

LIST OF PARTIES

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

[] 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:

TABLE OF CONTENTS

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

JURISDICTION................................................................................................................... 2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ................................. 3

STATEMENT OF THE CASE ............................................................................................ 5

REASONS FOR GRANTING THE WRIT..........................................................................11

CONCLUSION...................................................................................................................... 30

INDEX TO APPENDICES

APPENDIX A PENNSYLVANIA SUPREME COURT'S CERTIFIED PER CURIAM ORDER DENYING

PETITIONER'S MOTION FOR LEAVE TO FILE PETITION FOR ALLOWANCE OF

APPEAL, DATED JULY 16, 2018.

APPENDIX B PETITIONER'S MOTION FOR LEAVE TO FILE PETITION FOR ALLOWANCE OF

APPEAL TO PENNSYLVANIA SUPREME COURT.

APPENDIX C PETITIONER'S PETITION FOR POST CONVICTION COLLATERAL RELIEF

(PCRA) DATED MAY 9, 2016.

APPENDIX D

(a) LETTER FROM ATTORNEY BARBARA MCDERMOTT TO HAROLD JACKSON

DATED MAY 18, 1995; (b) LETTER IN RESPONSE TO ATTORNEY BARBARA

MCDERMOTT DATED MAY 26, 1995.

APPENDIX E AFFIDAVITS OF SHIRLEY MORRIS DATED MAY 2, 2016; HAROLD JACKSON

DATED APRIL 15, 2016; AND PETITIONER ERIC WILLIAMS DATED APRIL

22, 2016.

APPENDIX F

(a) PETITIONER'S APPELLATE BRIEF TO SUPERIOR COURT DATED JUNE

21, 2017; (b) PETITIONER'S AMENDED APPELLATE BRIEF DATED

APPENDIX G SEPTEMBER 14, 2017.

APPELLATE BRIEF FOR THE COMMONWEALTH DATED OCTOBER 16, 2017.

APPENDIX H

PENSYLVANIA SUPERIOR COURT MEMORANDUM ORDER DATED DECEMBER 20,

2017.

APPENDIX I PENNSYLVANIA RULES OF APPELLATE PROCEDURES, RULE 1114 ("CONSIDERATIONS GOVERNING ALLOWANCE OF APPEAL"), HISTORICAL NOTE DATED

MAY 9, 2000.

TABLE OF AUTHORITIES CITED

CASES

Brady v. Maryland, 373 U.S. 83,

PAGE NUMBER

S.Ct.

(1963)

Commonwealth v. Butler, 2011 LEXIS 127 (1/18/2011)

Commonwealth v. Casiano-Fernandez, 2010 Pa. LEXIS

2495 (10/28/2010)

Commonwealth v. Castro, 2012 PA Super 214, 55 A.3d 1242

(Pa. Super. 2012)(en banc), appeal granted, 619 Pa. 466,

65 A.3d 291 (Pa. 2013)

Commonwealth v. Harris, 972 A.2d 1196, 1199-1200

(Pa. Super. 2009)

Commonwealth v. Johnson, 863 A.2d 423, 427

(Pa. 2004)

(Continue on Next Page)

STATUTES AND RULES

42 Pa. C.S.A. § 9545(b)(2)

42 Pa. C.S.A. § 9545(b)(1)(i)-(iii)

8, 11, 12, 15, 16

8, 11, 12, 16, 17, 20

18 Pa. C.S.A. § 2502(b)

18 Pa. C.S.A. § 3101(a)(1)(i)

18 Pa. C.S.A. § 3921(a)

18 Pa. C.S.A. § 903(a)

18 Pa. C.S.A. § 907

18 Pa. C.S.A. § 6108

Rule 1114 Pennsylvania Rules of Criminal Procedure

Historical Note Supreme Court Order dated May 9, 2000

9 F.N.,

App'x I, 27

OTHER

Vlth Amendment United States Constitution

22, 23

Article VI United States Constitution Supremacy Clause

Article I, § IX Pennsylvania's Constitution

Cases Continued from Previous Page

PAGE NUMBER

CASES

Commonwealth v. Pagan, 597 Pa. 69, 950 A.2d 270, 272

cert. denied, Pagan v. Pennsylvania, 555 U.S. 1198,

129 S.Ct. 1378 (2009)

Commonwealth v. Stock, 545 Pa. 13 (Pa. 1996)

Dretke V. Haley, 541 U.S. 386,

124 S.Ct. 1847, 1852 (2004)

Houes v. Bell, 547 U.S. 518, 126 S.Ct. 2064 (2006)

McQuiggin v. Perkins,

U.S.

133 S.Ct. 1924 (2013)

24, 25

Millinghouse v. Drake, 2014 Pa. LEXIS 2019 (8/11/2014)

Murray v. Carrier, 477 U.S. 478, 495, 106 S.Ct. 2639 (1986)

Stocker v. Warden, 2004 U.S. DIST. LEXIS 5395 (2004)

25,

Schiup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851 (1995)

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

II ] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix

the petition and is

[ ] reported at

; or,

[1 has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

[1 reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[1 is unpublished.

[XJ For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix A to the petition and is

[] reported at

; or,

[x] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the PENNSYLVANIA SUPREME

appears at Appendix

L to the petition and is

[ ] reported at

; or,

has

been

designated

for

publication

but

not

yet

reported;

or,

[x]

[] is unpublished.

court

JURISDICTION

[ ] For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was

[ I No petition for rehearing was timely filed in my case.

[II A timely petition for rehearing was denied by the United States Court of

Appeals on the following date:

, and a copy of the

order denying rehearing appears at Appendix

[I An extension of time to file the petition for a writ of certiorari was granted

to and including

(date) on ____________________ (date)

in Application No.

A______

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[X] For cases from state courts:

The date on which the highest state court decided my case was JULY 16, 2018

A copy of that decision appears at Appendix A

[] A timely petition for rehearing was thereafter denied on the following date:

and a copy of the order denying rehearing

appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including

(date) on

(date) in

Application No.

A______

________________

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

42 Pa. C.S.A. § 9545(b)(1) & (2)(i)-(iii) provides in relevant part:

(1) Any petition under this subchapter, including a second

or subsequent petition, shall be filed within one year of the

date the judgment becomes final, unless the petition alleges and

the petitioner proves that:

the failure to raise the claim previously was the result

of interference of government officials with the presentation

of the claim in violation of the Constitution or laws of this

Commonwealth or the Constitution or laws of the United States;

the facts upon which the claim is predicated were

unknown to the petitioner and could not have been ascertained

by the exercise of due diligence; or

the right asserted is a constitutional right that

was recognized by the Supreme Court of the United States or the

Supreme Court of Pennsylvania after the time period provided in

this section and has been held by that court to apply retroactively.

(2) Any petition invoking an exception provided in paragraph

(1) shall be filed within 60 days of the date the claim could

have been presented.

Article VI of United States Constitution Supremacy Clause

provides:

"This Constitution, and the Laws of the United States which

shall be made in Pursuance thereof; and all Treaties made,

or which shall be made, under the Authority of the United

States, shall be the supreme Law of the Land; and the Judges

in ever State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Article I, § IX, Pennsylvania Constitution provides:

"In all criminal prosecutions the accused hath a right to

be heard by himself and his counsel, to demand the nature

and cause of the accusation against him, to be confronted

with the witnesses against him, to have compulsory process

for obtaining witnesses in his favor, and, in prosecutions

by indictment or information, a speedy public trial by an

impartial jury of the vicinage; he cannot be compelled to

give evidence against himself, nor can he be deprived of

(Continued)

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED (Con't)

his life, liberty or property, unless by the judgment of his

peers or the law of the land. The use of a suppressed voluntary admission or voluntary confession to impeach the credibility of a person may be permitted and shall not be construed

as compelling a person to give evidence against himself."

Amendment VI United States Constitution provides that:

"In all criminal prosecutions, the accused shall enjoy the right

to a speedy and public trial, by an impartial jury of the State

and district wherein the crime shall have been committed, which

district shall have been previously ascertained by law, and

to be informed of the nature and cause of the accusati" on; to

be confronted with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have

Assistance of Counsel for his defense."

STATEMENT OF THE CASE

Pro se Petitioner, Eric Williams ("Williams" hereinafter),

was arrested September 3, 1989, along with codefendant George

Page and later charged with Second Degree Murder (18 Pa. C.S.A.

§2502(b)), Robbery (18 Pa. C.S.A. §3701(a)(1)(i)), Theft (18

Pa. C.S.A. §3921(a)), Criminal Conspiracy (18 Pa. C.S.A. §903(a)),

Possession of an Instrument of a Crime (18 Pa. C.S.A. §907),

and Carrying a Firearm on a Public Street (18 Pa. C.S.A. §6108).

Following a non-jury trial, Williams was convicted on the above

charges October 24, 1990 and sentenced to serve a term of life

imprisonment.

The State's primary witness against Williams was 15-yearold, Harold Jackson. During trial he had testified that on August

27, 1989, at approximately 2:30 a.m, he saw Williams and codefendant, Page, sitting in a car in the 4600 block of North Sydenham

Street. The victim, Chae Kim, drove up, got out of his car with

money in hand and approached Williams and Page. Mr. Jackson

further stated that he saw Williams grab the money out of Mr.

Kim's hand and run. Mr. Kim gave chase after Williams.

Jackson said he lost sight of both men, but saw them again

shortly thereafter. It was during this time that Page pulled

out a gun and ran from the car. Jackson stated he heard Williams

tell Page to "bust him." Page fired the gun at Mr. Kim three

times. Mr. Kim died as result of his injuries.

Williams' trial counsel filed post-verdict motions, which

were denied. Williams then filed pr o se post-verdict motions

on the grounds of ineffective assistance of counsel. Trial counsel

had withdrawn from the defense and the court appointed attorney

Thomas Ciccone. The case was later reassigned to Honorable Judge

Ricardo Jackson. For some time, the case remained inactive due

to conduct of defense counsel, resulting in the court's removal

of Mr. Ciccone.

Court appointed counsel, Barbara McDermott, submitted supplemental post-verdict motions on Williams' behalf. On September

21, 1994, counsel became aware for the first time that Harold

Jackson had recanted his testimony against Williams. The recantment was in the form of a letter Mr. Jackson had sent to Williams'

mother, Shirley Morris. Ms. Morris had sent the letter to counsel

McDermott, which had been presented to Judge Jackson during post

verdict motions argument on September 21, 1994. Judge Jackson

dismissed the veracity of the recanted statement on the grounds

that it had been unsigned and undated by Mr. Jackson.

In addition, Judge Jackson indicated the possibility that

the statement was false and, perhaps, written by someone other

than Mr. Jackson.

Counsel had immediately asked for a continuance and for

the court to authorize funds to hire an investigator so that

counsel could locate, interview, and investigate the State's

main witness and the nature of his letter. Because the statement

detailed that Mr. Jackson's testimony had been given under duress

of threats from police detectives involved in the investigation and

he'd taken a financial bribe from an assistant district attorney

to give false testimony during trial, counsel believed those

to be substantial element exculpating Williams from guilt and

warranted a new trial.

The court denied counsel's requests for continuance and

funding so as to investigate the veracity of Mr. Jackson and

his recanted statements. In additional, the court denied all

other post-verdict motions presented.

On May 18, 1995, while Mr. Jackson was confined at the State

Correctional facility in Frackville, PA, counsel wrote him a

letter concerning the recanted statement and asked that he send

a notarized letter outlining all interactions he had with police

and/or the Philadelphia District Attorney's Office, specifically

pertaining to this case.

Mr. Jackson responded in an unnotarized letter dated 5/28/95,

but reiterated that which he had outlined previously. Counsel

appealed the judgment of sentence to the Pennsylvania Superior

Court. On November 30, 1995, a three judge panel of the Court

affirmed judgment of sentence. A Petition for Allowance of Appeal

before the state Supreme Court followed on December 22, 1995,

which had also denied all relief.

Williams had filed three Post Conviction Hearing Act ("PCRA")

petitions and appears therefrom to the state Superior and Supreme

Courts over a span of years. On each occasion, counsel had not

been appointed and he was denied relief of the merits. On May 9,

2016, Williams had filed a fourth pro se PCRA Petition pursuant

to 42 Pa. C.S. §9545(b)(1)(i) & (ii) and 42 Pa. C.S. §9545(b)(2)

on the merit of newly discovered evidence not made available

to him during trial.

The new evidence is relevant and pertinent to the case

because it consists of an unsolicited affidavit in the form

of a letter of material state's witness, Harold Jackson, that

had been sent to Petitioner's mother in March of 2016. It had

been signed, dated and notarized.

The document is another factor of Jackson's recantation

relating to false testimony offered against Petitioner outside

his presence and of which declars Williams as having had no

involvement in the actions of his co-defendant in killing the

victim, Mr. Kim. The affidavit further details that Mr. Jackson

had been coerced and paid a sum of money by a member of the

Philadelphia District Attorney's Office and police detectives

directly involved with the criminal investigation of the case.

At no time had Williams or his counsel had opportunity

to investigate this information or to cross-examine Mr. Jackson

during any case proceding. Moreover, the prosecution has failed

to release discovery material divulging the District Attorney's

Office payment-for-testimony to Mr. Jackson.

Within his PCRA Petition, Williams requested the relief

of an evidentiary hearing so that he may summon and question

Mr. Jackson as well as for a new trial.

On April 20, 2017, the PCRA Court denied Williams' PCRA

Petition as being untimely filed and as having been previously

raised by his trial and appellate counsels. A timely appeal

was entered before the Pennsylvania Superior Court in which

an Appellate Brief was filed on June 21, 2017, followed by an

Amended Appellate Brief on September 14, 2017. See App'x F.

Based upon a standing Pennsylvania Supreme Court Order

governing Pennsylvania Rules of Appellate Procedure, Rule 1114

("Considerations Governing Allowance of Appeals"), which states

in relevant part that "...[i]n all appeals from criminal convictions or post-conviction relief matters, a litigant shall

not be required to petition for rehearing or allowance of appeal

following an adverse decision by the Superior Court in order

to be deemed to have exhausted all available state remedies

respecting a claim of error[.]",

Petitioner proceeded to file

a timely Petition for Writ of Certiorari before this Honorable

Court on March 20, 2018.

The Clerk of this Court returned the Petition on March

27, 2018 with instructions that the case must first be reviewed

by a United States court of appeals or by the highest state

court in which a decision could be had.

On April 9, 2018, Petitioner filed a "Petition for Leave

to File Petition for Allowance of Appeal Nunc Pro Tunc"to the

the Pennsylvania Supreme Court and an Application to Proceed

1Pa.R.App.P., Rule 1114 at Historical Notes; Order of May 9, 200). See App'x. I.

in Forma Pauperis with Verified Statement on May 7, 2018; amended

May 21. 2018. See App'x. B. The Pennsylvania Supreme Court

entered an Order on July 16, 2018 denying Petitioner's Petition

for Leave to File Petition for Allowance of Appeal Nunc Pro

Tunc. App'x A.

Respectfully, this Petition for Writ of Certiorari is now

ripe for consideration by this Honorable Court in review of

the merits.

REASONS FOR GRANTING THE PETITION

1. THE PENNSYLVANIA SUPERIOR AND COMMON PLEAS COURTS ABUSED

THEIR DISCRETION BY DENYING TO GRANT WILLIAMS AN EVIDENTIARY HEARING TO REVIEW THE MERITS OF HIS CLAIMS OF

ACTUAL INNOCENCE RESULTING FROM NEW EVIDENCE OF RECANTED

STATEMENTS OF APPELLEE'S KEY WITNESS, HAROLD JACKSON.

It would be a grave miscarriage of justice of our legal

system and the United States Constitution to sustain the conviction of an innocent man for a crime he did not commit based

solely upon the false, coercive testimony of a juvenile who

had a criminal history of his own at the time.

Williams had filed a timely PCRA petition to the Common

Pleas Court for review within the time allowed by Pennsylvania

Statute 42 Pa. C.S. 9545(b)(2) after he received a notarized,

signed and dated recanted statement from Respondent's sole

witness that testified against him at trial. See Appendix C.

This is his fourth such petition. A petition for relief under

the PCRA, including a second or subsequent petition, must be

filed one year of the date the judgment becomes final unless

the petition alleges, and the petitioner proves, at the exception

to the time for filing the petition, set forth at 42 Pa. C.S.A.

§9545(b)(1)(i), (ii), and (iii) is met. Commonwealth v. Harris,

972 A.2d 1196, 1199-1200 (Pa. Super. 2009). The act provides:

(b) Time for filing petition.

Any petition under this subchapter, including a

second or subsequent petition, shall be filed within

one year of the date the judgment becomes final, unless

the petition alleges and the petitioner proves that:

Any petition invoking an exception provided in

paragraph (1) shall be filed within 60 days of the

date the claim could have been presented.

(1) the failure to raise the claim previously as the

result of interference by government officials with

the presentation of the claim in violation of the Constitutionor laws of this Camonwealth or the Constitution or laws of the United States;

the facts upon which the claim is predicated were

unknown to the petitioner and could not have been acertamed by the exercise of due diligence; or

the right asserted is a constitutional right

that was recognized by the Supreme Court of the United

States or the Supreme Court of Pennsylvania after the

tine period provided in this section and has been held

by that court to apply retroactively.

42 Pa. C.S.A. §9545(b).

As noted by the Superior Court, Williams' judgment of

sentence became final on or about July 15, 1996, upon expiration

of the ninety-day period for filing a writ of certiorari with

the U.S. Supreme Court. Thus he had one year from that date,

or until July 15, 1997, to file a timely PCRA petition. He did

not file the instant petition until May 10, 2016, more than

19 years after his judgment of sentence became final. See App'x.

H, at p. 3.

Neither of those facts are of dispute. However, Williams

had invoked the exception part of the provision to the time

bar, which provides that any new evidence claim must be filed

within 60 days of the date the claim could have been presented.

42 Pa. C.S.A. §9445(b)(2). The PCRA court dismissed the petition

prematurely as being untimely filed. The Superior Court affirmed,

stating that the recantation of Harold Jackson is not a new

"fact" as contemplated by the PCRA. App'x. H, p. 3 at ¶ 2.

The Court further reasoned that Williams' affidavit demonstrates that he was aware of Jackson's recantation as far back

as 1994 and had not explained he was unable to present the information to the court at an earlier date. That is incorrect. It

should be understood that when Williams first became aware of

the fact-information, he was incarcerated and had no personal

contact with neither his codefendant, Mr. Page, nor with the

witness, Harold Jackson. That information received by a third

party was simply hearsay in nature. At the time, Williams had

no actual transcripts or other paperwork that would verify that

Mr. Jackson had recanted his testimony or had been coerced by

police and bribed by the District Attorney.

Williams had sought to retain the transcript from Mr. Page's

post-sentencing hearing, but was unsuccessful. He would continue

those efforts through the many years, but still the District

Attorney's Office had objected to their release. It was not until

Mr. Jackson had sent a letter to his mother, Mrs. Morris, which

was later forwarded on to William's attorney, Barbara McDermott

in 1994, that williams actually knew that material "fact" of

Mr. Jackson's recantation existed.

Contrary to the Superior Court's allegation that William's

had not explained why he was unable to present the information

to the court at an earlier date, Williams, through his counsel,

did in fact make an attempt in the Honorable Judge Jackson's

court during the combined post-trial motions and sentencing

proceedings held September 21, 1994. The Superior Court neglected

to view that information in Williams' PCRA petition. See Appendix

C, Petition for Post Conviction Collateral Relief, 5/9/16, at

P. 3(a). Judge Jackson immediately deemed the document not

credible since it had not been signed, dated, or notarized.

In addition, requested funding and for a continuance in

the proceedings so that counsel may further investigate the

document's authenticity and question Mr. Jackson were also

denied by Judge Jackson.

The appellate court had affirmed the PCRA court's decision

denying Williams an evidendiary hearing based on the mere assumption that he had known of the newly discovered "fact" and hadn't

presented it earlier, when he had not. He'd only been told that

something was so, which did not make it a "fact." Even the

1994 recanted letter that counsel McDermott had received that

was unsigned or dated was not "fact" related material, which

was why Judge Jackson had rejected it as being not credible

despite, himself, having heard Mr. Jackson cite that very

recantation to him almost word-for-word verbatim when he resided

at the Post-Sentencing Hearing of Williams' codefendant, Mr.

Page, on February 28, 1994. That was something that not even

the judge had shared with Williams' counsel.

Based upon the above facts, Williams respectfully requests

this Honorable Court grant his Petition for remand for further

proceedings and review.

2. WILIAMS' FOURTH POST CONVICTION RELIEF ACT (PCRA)

PETITION WAS FILED WITHIN THE 60 DAY TIME PERIOD

EXCEPTION ALLOWED BY PENNSYLVANIA'S STATUTE 42

PA C.S. §9545(B) TO BE ELIGIBLE FOR REVIEW.

The PCRA court had denied Williams's PCRA petition as being

unitmely filed. The court's findings are in error and Williams

should be granted relief in this matter for the following

reasons.

As previously explained, Harold Jackson's recantation statement that was previously written in 1994 had been rejected as

unbelievable by Judge Jackson because it hadn't been signed

or dated by its alleged author. Therefore, the matter of the

recantation was not fully adjudicated. Williams' counsel tried

contacting Mr. Jackson while he was confined at a State

Correction Facility in Frackvillie, Pennsylvania, requesting

that he provide her with a notarized letter outlining specific

information concerning his interaction with police and the

District Attorney's Office. See Appendix D.

In response, Mr. Jackson neglected to have the letter

notarized and gave a brief dialogue of events he experienced

with police and the District Attorney. Without funding approval

from the court, counsel did not pursue an investigator or visited

Mr. Jackson to retain a more effeicient and believable affidavit.

Years later, in March of 2016, Williams' mother, Shirley

Morris, received another letter in the mail from Mr. Jackson.

It had been duly sworn, dated, and notarized. See Appendix E,

Sworn Affidavit of Shirley Morris with attachments, 5/2/16.

The letter by Mr. Jackson is similarly worded as that which

he provided in 1994. It briefly describes that he was a juvenile

at the time of the incident at issue and that he had lied on

the [witness] stand about Erik (sic) Williams being place (sic)

at the scene of the crime.

The letter further describes that Mr. Jackson was threatened

by detectives and the District Attorney, and being persuaded

to testify against Williams by being offered money. Appendix

E attachments.

Williams had received the documents from Mrs.. Morris on

April 4, 2016, after speaking with his mother. See Appendix

E, Affidavit in the Interest of Eric Williams, 4/22/16, at ¶ 6.

Neither Williams or his mother had encouraged or paid Mr. Jackson

to draft this document. In fact, because Mr. Jackson is located

at another prison, Williams is not allowed to communicate with

him at all.

Williams proceeded to file his PCRA petition on May 9, 2016,

thus making the filing timely in accordance with 42 Pa. C.S.

§9545(b)(1)(i)-(iii), and 42 Pa. C.S. §9545(b)(2).

In addressing this matter, the Appellate court correctly

pointed out that our Supreme Court held that [t]he focus of

the exception is "on [the] newly discovered facts, not on a

newly discovered or newly willing source for previously known

facts." Commonwealth v. Johnson, [] 863 A.2d 423, 427 ([Pa.]

2004) (emphasis in original).

However, This Honorable Supreme Court should grant this

Petition to determine if the PCRA court and Appellate court

should have used its discretion to consider the factors that,

when Williams had presented the initial claim to Judge Jackson's

court, it was not considered to be factum evidence due to it

not being signed or dated. Thus the evidence of Mr. Jackson's

recantation did not exist. Furthermore, Williams asks this Court

to consider that it was as result of counsel's request for continuance and funding to investigate and interview Mr. Jackson

about the the non-factum evidence being denied by Judge Jackson,

he could not have ascertained those facts by exercise of "due

diligence." See 42 Pa. C.S. §9545(b)(1)(i) & (ii).

Previously, our Supreme Court had detailed a PCRA

petitioner's burden when presenting after-discovered evidence

for review. The Court held that [the PCRA petitioner] must demonstrate that the evidence:

(1) could not have been obtained prior to the

conclusion of the trial by the exercise of reasonable

diligence; (2) is not merely corroborative or

cumulative; (3) will not be used solely to impeach

the credibility of a witness; and (4) will likely

result in a different verdict if a new trial were

granted.

Commonwealth v. Pagan, 597 Pa. 69, 950 A.2d 270, 292 (Pa. 2008),

cert. denied, Pagan v. Pennsylvania, 555 U.S. 1198, 129 S.Ct.

1378 (2009); accord Commonwealth v. Castro, 2012 PA Super 214,

55 A.3d 1242, 1246 (Pa. Super. 2012) (en banc), appeal granted,

619 Pa. 466, 65 A.3d 291 (Pa. 2013).

Williams had demonstrated that he could not have obtained

the evidence prior to the conclusion of the trial by the exercise

of reasonable diligence because Judge Jackson denied a continuence

of his post-trial proceedings and funding so that counsel could

have the evidence and Mr. Jackson investigated. He also demonstrated that the evidence was not corroborative nor cumulative

in content, and that it was not going to be used to impeach the

credibility of the witness. Finally, because there is so little

evidence connecting Williams to the crime, it makes the recantation of such significance that a different verdict would likely

result at a retrial. Williams has maintained his innocence

thorughout the years. There's no ballistic nor DNA evidence tying

him to the crimes and he was not aware of Mr. Page's intentions

of killing Mr. Kim. In fact, Mr. Page admitted as much during

an investigative interview before Lee Mandell, Esq.

Therefore, it is requested that this Petition for Writ of

Certiorari be granted and the matter remanded for further proceedings and an evidentiary hearing.

3. IT WAS AN ABUSE OF DISCRETION TO DENY EVIDENTIARY

HEARING ON THE MERIT OF WITNESS'S RECANTATION

STATEMENT WHEN WILLIAMS HAD NO WAY OR METHOD

OF RETAINING AND PRESENTING THE NEW EVIDENCE

AT AN EARLIER TIME.

When Williams' counsel came into possession of the first

recanted statement of Mr. Jackson, it was for the first time

and had been received from Williams' mother, not Williams himself.

He had never had possession of that document and had no knowledge

of it until his mother informed him about its existence and he

later was given a copy though his counsel.

Mr. Jackson again recanted his false testimony in 1994

in open court before Judge Jackson and in a letter addressed

to Williams' mother. The Superior Court denied Williams request

for an evidentiary hearing on his fourth PCRA petition for newly

discovered evidence on its assumption that Williams did not

explain why he was unable to present the evidence earlier. The

fact is that Williams did make reasonable efforts to bring this

evidence to the court's attention at an earlier time, but had

been prevented from doing so by the court's refusal to allow

funding and a continuance during post-verdict proceedings.

In his PCRA petition, Williams gave detailed explanation

in GROUND ONE:

Petitioner has diligently sought to retain the transripts of Mr.

Page's Post-Sentence Hearing and the recanting statnts of Mr.

Jackson ever since learning of their existence for purposes of

his appeals, but has been unsuccessful :in his efforts. Such

efforts included, but are not Limited to, seeking the assistance

of his then-counsel, Barbara Itfnntt, to acquire an affidavit

-Jr-an-W Jck

ld.ing-up to his involvement

thng

with the detectives and the District Attorney that resulted in

his making the false testimony against Petitioner. See Exhibit

PCRA Petition, App'x C at p. 3(a), ¶ 2. It continues to further

explain the diligent measures which he had taken and why he was

unable to affirmatively present the new discovery evidence at

an earlier date. So the appellate court was in error for concluding that Williams did nothing.

Moreover, Respondent had mislead the appellate court in

it's brief by stating that Williams and his codefendant raised

arguments regarding Mr. Jackson's recantation by calling Mr.

Jackson again and elicited testimony concering his 1993 recantation letter. See App'x G, Brief for the Commonwealth as

Appellee, 10/16/17, at p. 10, ¶ 1. Respondent further goes on

to erroneously state that the "new facts" Willaims raised in his

fourth petition were not new at all and had already been litigated

in prior proceedings. Id.

The first delusion is that Williams did not call Mr. Jackson

during his post—verdict motion hearing and argument nor never

had opportunity to elicit anything from him concerning the recantation letter. Williams had asked for a continuance and funding

to investigate Mr. Jackson and the veracity of the recantation,

but both requests had been staunchly denied by Judge Jackson.

Next, the recantation letter was not drafted in 1993. In fact,

as Judge Jackson had pointed out, the letter contained no date

as well as no signature. It was, however, received by Williams'

counsel in 1994. Finally, the facts raised in Williams' fourth

petition were not received until 2016. Therefore, they were not

previously litigated in any of his prior proceedings, because

he did not possess them then.

This Honorable Supreme Court should grant this Petition and

remand the matter for further review and an evidentiary hearing.

Williams had presented the PCRA petition with supporting new

evidence within the 60 day time period when he first came to

possess the sworn, sized, notarized recantation of the witness.

See 42 Pa. C.S.A. §9545(b)(1)(i), (ii).

2 0-

The Petitioner has shown that the record clearly indicates

his counsel had made a dutiful effort to effectively present

the evidence to Judge Jackson, but her attempts were dejected

because the evidence, i.e., Jackson's recantation statement,

had not been signed of dated. Counsel's further requests for

funding and reasonable amount of time for continuance to have

the statements verified were also denied, despite the fact that

Judge Jackson had already been previously aware that the statement was true since Harold Jackson had initially made it in

the judge's presence on February 28, 1994, months. before Williams

or his counsel were made known of it.

Moreover, there was no way for Williams to retain the state—

ment because the prison's policy prohibits communication between

inmates housed in separate institutions. Therefore, this further

hindered Williams from presenting it earlier. See App'x C at

pp. 8(a)-8(b). Thus it is by further reason that Williams

respectfully requests this Court to grant his Petition to have

the matter remanded for further review and the merit.

IT WAS AN ABUSE OF DISCRETION FOR THE SUPERIOR

COURT TO DENY AN EVIDENTIARY HEARING OF THE

RECANTATION OF KEY WITNESS WHERE THERE HAS BEEN

NO PROCEDURAL ERROR BY WILLIAMS OF EXPLAINING HIS

DUE DILIGENCE OF TRYING TO PRESENT THE EVIDENCE

TO THE COURT AT AN EARLIER TIME AND THE REASON

WHY HE COULD NOT.

This case hinges upon the false and misleading testimony

of Respondent's sole witness, Harold Jackson, after he's been

bribed by an assistant district attorney for $350.00, and further

coerced by detectives involved with investigating the case,

to give false testimony against Williams during trial. Such

interferences by state officials denied William to have a fair

and impartial trial in accordance with the Sixth Amendment of

the United States Constitution. When Williams had come upon

new evidence proving his innocence, the Superior Court abused

its discretion to deny an evidentiary hearing to present the

key witness recanting his statement where no procedural error

had been made showing due diligence of trying to present the

evidence at an earlir time and why such efforts were impossible.

The Commonwealth had proffered the false testimony of its

primary witness knowingly and without divulging information

that Harold Jackson had been bribed so that the Commonwealth

could secure a conviction. Such acts were criminal and a blatant

violation of Petitioner's constitutional rights. Since Jackson

was the only witness to the crime, and where he has decided

to come forward with the truth explaining how the assistant

district attorney and police detectives had induced him into

lying, the Petitioner should be able to present the truth.

Therefore, based upon the above facts, the Petitioner

requests that this Honorable Court grant this Petition and remand

the matter for further review on the merits.

5. THE PCRA AND APPELLATE COURTS SHOULD BE OBLIGATED

TO TREAT PCRA PETITION AS ONE FOR HABEAS CORPUS

REVIEW OR RELIEF TO RECANTATION EVIDENCE OF

RESPONDENT'S PRIMARY WITNESS TO CRIME IF THERE

IS NO PCRA REMEDY TO RULE ON THE MERITS IN ORDER

TO COMPLY WITH CLEARLY ESTABLISHED LAW AS

ARTICULATED IN PRECEDENTS BY THE UNITED STATES

SUPREME COURT.

The PCRA and Appellate Courts had erred in their decision

to deny Williams' PCRA petition, which had demonstrated a freestanding claim of actual innocence, and is worthy of remand for

an evidentiary hearing or retrial by this Honor United States

Supreme Court.

Given the overwhelming and substantial weight of the primary

witness, Harold :Jackson, and his recantation statement presented

by Williams, which could not have been retained by the imprisoned

Williams at any earlier time, it was a clear abuse of discretion

by the courts' failure to recognize the material "facts" of that

evidence that have not been previously litigated and requiring

some latitude to appoint counsel to review and/or amend the PCRA

petition, if neccessary.

The government had further undermined Williams' Sixth

Amendment of the United States Constitution and Article I, § IX

of Pennsylvania's Constitution to a fair trial. See Brady v.

Maryland, 373 U.S. 83,

S.Ct.

(1963). It then kept the

information of the deliberate use of false testimony a closed

knit secret.

The gravamen of Williams' fourth PCRA petition lies within

Mr. Jackson's March 16, 2016 sworn declaration, which narrates:

"I was threaten[ed] by detectives and District

Attorney who handle[d] Mr. Erik Williams case

and on some occasions I was also persuaded

to testify againt Mr. Erik Williams by being

officered money before testimony."

See Appendix E, p. 4 at ¶ 2. The Respondent never informed

Williams or his counsel about any payoff the Mr. Jackson was

received to testify nor about that of the coercive tactics police

had imposed upon him. In light of these new discoveries, the

courts should have been willing to do something more than deny

the petition without a hearing

As the this United States Supreme Court had rationalized

in McQuiggin v. Perkins,

U.S.

133 S.Ct. 1924 (2013),

such a similar case is for remand of the the matter to address

the merits of establishing actual innocence based upon recanted

evidence. Id. This Court also addressed if whether the AEDPA

statute of limitations could be overcome by a showing of actual

innocence as it seeks to balance the societal interest in

finality, comity and conservation of scarce judicial resources

with the individual interest in justice that arises in the extraordinary cases. See Schlup v. Delo, 513 U.S. 298, 324, 115

S.Ct. 851 (1995).

This instant PCRA petition presents a gateway claim of actual

innocence. Such a claim must be entertained in the spirit of

House v. Bell, 547 U.S. 518, 126 S.Ct. 2064 (2006), because rules

of procedural default do not apply to gateway claims of actual

innocence. See Murray v. Carrier, 477 U.S. 478, 495, 106 S.Ct.

2639 (1986).

Mr. Jackson's recantation statment further gives air that

he had made an effort to register the truth of his deceit some

time ago:

"1 want nothing other but to resolve this matter

and let the truth be told. I also did try to

explain this truth before in Mr. Erik Williams

and GeorgePage appeal some time ago."

Appendix E, Attachment of Sworn Affidavit of Shirley Morris,

p. 4 at ¶ 3.

Williams finally urges this Court to grant this Petition

because the failure of the PCRA and Appellate Court to provide

an evidentiary hearing and give meaningful consideration to a

gateway claim of actual innocence violates the Supremacy Clause

of the Constitution of the united States as being contrary to

clearly established federal settled in Bell. See also, Stocker

v. Warden

2004 U.S. Dist. Lexis 5395 (EDPA, Giles, C.J.)(Habeas

corpus granted based on actual innocence). In Warden, Judge Giles

considered the legislative history of the AEDPA and noted the

efforts by Congress "to preserve review where a petitioner could

show innocence." Id. at *8.

This Honorable Court is encouraged to discern by established

federal law memorialized in holdings of the United States Supreme

Court, which the PCRA court was obligatedto adhere under the

Supremacy Clause of the United States Constitution since a gateway

claim of actual innocence cannot be denied based on a rule of

procedure, because such claims are not subject to the doctrine

of procedural default or time bar, which is another form of procedural default. Bell citing Dretke v. Haley, 541 U.S. 386,

124 S.Ct. 1847, 1852 (2004)(holding that colorable claims of

actual innocence are not subject to procedural default).

The Bell Court also held that, when considering an actual

innocence claim, the reviewing court must consider "all the

evidence, old and new, incriminating and exculpatory, without

regard to whether it would necessarily be admitted..." Id.,

547 U.S. at 537-538. The question thus becomes "whether more

likely than not any juror would have reasonable doubt." Id.,

at 538. Under such circumstances, it is how the jurors or the

Judge as fact-finder would react to the overall, newly

supplemented record. Id.

Therefore, upon consideration of the facts presented herein,

the Petitioner respectfully requests this Honorable Supreme

Court to grant this Petition for Writ of Certiorari and remand

the matter for further review on the merits.

THE PENNSYLVANIA SUPREME COURT ERRED AND ABUSED

ITS DISCRETION THEREBY DENYING WILLIAMS LEAVE TO FILE

A PETITION FOR ALLOWANCE OF APPEAL NUNC PRO TUNC

SO HE MAY EXHAUST HIS APPELLATE REMEDIES DUE TO HIS

FIRST FILING FOR WRIT OF CERTIORARI.

The Homorable Pennsylvania Supreme Court had erred and

abused its discretion by denying Williams leave to file a

Petition for Allowance of Appeal Nunc Pro Tunc to exhaust

appellate remedies due to his first filing for writ of certiorari to this Court as result of the Appellate Rules of Court

Supreme Court Order concerning appellate filings.

The Pennsylvania Supreme Court had entered an order dated

May 9, 2000, within the Historical Notes of Pennsylvania Rules

of Appellate Procedure, Rule 1114, which dictates in pertinent

part:

Historical Notes

Order of Ivhy 9, 2000

Order No. 218, Supreme Court Judicial Administration Docket No. 1

(30 Pa. B. 2582), provides:

AND NOW, this 9th day of May, 2(0), we hereby recognize that the

Superior Court of Pennsylvania reviews criminal as well as civil appeals.

Further, review of a final order of the Superior Court is not a matter

of right, but of sound judicial discretion, and an appeal to this Court

will only be allowed when there are special and Important reasons therefore.

Pa.R.A.P. 1114. Further, we hereby recognize that criminal and post conviction relief have petition and do routinely petition this Court for

for allowance of appeal upon the Superior Court's denial of relief in order

to exhaust all available state relies for purposes of federal habeas

corpus relief.

In recognition of the above, we hereby declare that in all appeals

from criminal convictions or post-conviction relief matters, a litigant

shall not be required to petition for rehearing or allowance of appeal

following an adverse decision by the Superior Court in order to be deemed

to have exhausted all available state remedies respecting a claim of error.

When a claim has been submitted to the Superior Court, or to the Supreme

Court of Pennsylvania, and relief has been denied in a final order, the

litigant shall be dead to have exhansted all available state remedies

for the purposes of federal habeas corpus relief. This order shall be

effective inirediately.

Pa.R.A.P., Rule 1114, Historical Notes (emphasis omitted). Based

upon this order, it has always been the choice of the appellant

to either proceed an appeal for habeas corpus review or present

his claim before the United States Supreme Court.

So when this Court had rejected Petitioner's Petition for

Writ of Certiorari on March 27, 2018, insisting that he first

seek review by the state's Supreme Court or a federal appeals

court, review was sought within the Pennsylvania Supreme Court.,

App'x B.

The Pennsylvania Supreme Court denied the Petition without

reason. While it is not disputed that the Supreme Court had

broad discretion to deny a petition and that this is not a matter

of right to Petitioner, Peititoner firmly believes that it was

an err and abuse of discretion in their doing so, because the

Court has been known to relinquish its discretion upon numerous

cases filing nunc pro tunc for various reasons. See e.g.,

Commonwealth v. Butler, 2011 LEXIS 127 (1/18/2011) per curiam;

Millinghouse v. Drake, 2014 Pa. LEXIS 2019 (8/11/2014) per

curiam; Commonwealth v. Casiano-Fernandez, 2010 Pa. LEXIS 2495

(10/28/2010) per curiam; and Commonwealth v. Stock, 545 Pa.

13 (Pa. 1996) per curiam.

Petitioner believes that the merits of his case are extraordinary circumstances deserving the Court's audience where

he has new evidence indicating his innocence and that involves

recanted statements of the prosecution's solitary against Petitioner. That recantment, in which the witness swares, details

misconduct of the prosecutor and police officials colluding

to compel the witness to emit false testimony against Petitioner

for the purpose of retaining a conviction to an otherwise baseless case, which is a clear violation of Petitioner's Sixth

Amendment right to a fire and impartial trial.

This is evidence in which the trial judge had pre-knowledge

of, but that had not been afforded the Petitioner or his counsel.

It is evidence that the Petitioner had no way of retaining him-

self as result of his incarceration and the incarceration of

the witness. Moreover, Petitioner's counsel was denied the leave

requested for a continuance and funding in order to visit the

witness at his prison to interview and question him as to the

events and his involvements with police and the assistant district attorney; as well as to secure a signed, dated, and

notarized affidavit that would satisfy the judge's questions

concerning the recantment's authenticity.

Grant that the initial recantment document prepared by

the witness was not the best prepared affidavit ever presented

to a court, but Mr. Jackson's literary prowess should in no

way negate the action of the government's deleterious interference of neither the detectives or the assistant district

attorney by threatening and encouraging any witness to lie in

court in order to secure their conviction for a crime they did

not commit.

Considering the fact that the witness had admittedly lied

under oath in open court for the prosecutor and at the coercive

actions of police officials, the truth of those lies should

not continue to be hindered thereby denying Petitioner the

request for an evidentiary hearing.

WHEREFORE, upon final consideration of the foregoing issues

presented herein, Petitioner respectfully requests that the

court ORDER the remand of this matter for further review on

the merits.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully sub •tted,

Date:

October 1, 2018

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