Petition for Writ of Certiorari — Jervon L. Herbin, Petitioner v. Virginia

Supreme Court, U.S.

FILED

No.

DEC 1 1 201 7

10

OFFICE OF THE CLERK

NAL

IN THE

SUPREME COURT OF THE UNITED STATES

JANUARY TERM 2018

JERVON L.HERBIN- PETITIONER PRO SE

Vs.

THE COMMONWEALTH OF VIRGINIA-RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

SUPREME COURT OF VIRGINIA

PETITION FOR WRIT OF CERTIORARI

JERVON L. HERBIN

BUCKINGHAM CORRECTIONAL CENTER

1349 CORRECTIONAL CENTER ROAD

P.O. BOX 430

DILLWYN, VIRGINIA 23936

(434) 894-4400

5

QUESTION(S) PRESENTED

Did the Lower Court(s) Err in refusing to grant retroactive

application to Fishback v. Commonwealth?

Did the Virginia Supreme Court Err in holding the Pro Se

Petitioner to a procedural standard inconsistent with Estelle

v. Gamble?

Did the Lower Court(s) Deprive of Petitioner his right to Due

Process, Equal Protection under the Laws in violation of

Amendment Fourteen to the U.S. Constitution?

Did the Lower Court(s) Deprive Petitioner of his right to Trial

by Fair and Impartial Jury?

S.

Did the Lower Court(s) Deprive Petitioner of his rights under

the Sixth Amendment?

Did the Lower Court(s) subject Petitioner to Cruel and

Unusual Punishment in Violation of Amendment Eight to the

U.S. Constitution?

Did the Lower Court(s) refusal to Charge the jury with the

current state of the law constitute a "Structural Defect" in

the Trial Mechanism? And did that structural defect in the

trial mechanism deprive the Petitioner of Fundamental

Fairness, Due Process, Equal Protection, and the rights

guaranteed under the Sixth Amendment for a fair trial?

S.

Did the Lower Court(s) violate the "Ex Posto Facto Clause?"

Did the Trial Court err in refusing to charge the jury with the

current state of the law when the jury asked for instruction

on the matter?

Was Petitioner subjected to Ineffective Assistance of

Counsel both actual and constructive at the trial and post

conviction stages?

LIST OF PARTIES

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

Jervon L. Herbin, Petitioner Pro Se

Vs.

The Commonwealth of Virginia, Respondent

7

TABLE OF CONTENTS

OPINIONS BELOW

.

pg. 15

J URISDCITIOFtl........................................... pg. 15

..

TABLE OF AUTHORITIES

pg. 9, 10, 11,

.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED.............................................. pg. 14

STATEMENTOF THE CASE............pg. 17, 18,19,20,21

QUESTIONS PRESENTED FOR REVIEW......pg. 7, 8,9

REASONS FOR GRANTING THE WRIT .... pg. 19, 20

ARGUMENT ................................. pg. 20

CONCLUSION.......................................pg. 37

INDEX TO APPENEDICES

APPENDIX A

APPENDIX B

APPENDIS C

APPENDIX D

APPENDIX E

TABLE OF AUTHROTIES CITED

CASES:

Amendment Eight to the U.S. Constitution....................Pg. 31

Amendment Fourteen to the U.S. Constitution..............Pg. 31

Amendment Six to the U.S. Constitution.......................Pg. 31

Article One Section Eight Constitution of Virginia.........Pg. 31

Brown v. Louisiana. 100 S. Ct. 2214,477, U.S. 23 (1980) .... Pg.

Bryant v. Commonwealth. 216 Va. 390,393,219 S.E. 2d 669, 671

(1975)...........................................................................Pg. 35

Caldwell v. Mississippi, 472 U.S. 320, 340 (1985)...............Pg.

California v Ramps, 463 U.S. 992, 103 S. Ct. 3446, 77 L.Ed.2d

1171....................................................................................Pg. 29

ChaDman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L.Ed.2d

705.

Code of Virginia 19.2-925...................Pg. 23

Code of Virginia 53.1-165.1 ................ Pg. 29, 33

Code of Virginia Annotated 17.1-801 (2011).........Pg. 30, 34

Commonwealth v. Jerman, 556 S.E. 2d 754,236 Va. 88 (2002)

(Jan.11, 2002)...........................................................Pg.

Constitution of Virginia Article I (The Bill Of Rights).....Pg.

Constitution of Virginia Article IV....................................Pg.

Coward v. Commonwealth, 178 S.E. 797, 164 Va. 639......Pg.

(1935) ........................................................................ Pg.23, 28

Danforth v. Minnesota, 552 U.S. 264, 128 S.Ct. 1029, 169 L.Ed.2d

859(2008)

Duncan v. Louisiana, 391 U.S. 145, 158, 88 S. Ct., 1444, 1452, 20 L.

Ed. 491 (1968).................................................Pg.22

Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291, 50 L.Ed.2d

251(1976) . .................................................................... Pg.

Fishback v. Commonwealth. 260 Va. 104, 116, 532 S.E. 2d 629, 634

(2000) ................................................................. Pg.25, 28

Gardner v Florida, 430 U.S. 349, 361-62 (1977)..............Pg.

Hartigan v. Commonwealth.. 1999, 522 S.E.2d 406, 31 Va. App. 243,

rehearing en banc granted 525 S.E.2d 91 31 Va. App. 511, adhered

to on rehearing 531 S.E.2d 63, 32 Va. App. 873. Criminal Law K

790 ............................................................................................. Pg.

Jimenez v. Commonwealth 241. Va. 244.251. 402 S.E. 2d 678. 681

(1991). pg.35

Jonathan Dale SIMMONS. v. SOUTH CAROLINA, 114 S. Ct. 2187 512

U.S. 154, 129 L.Ed.2d 133, 62 USLW 4509..............................pg.

.7urek v. Texas, 428 U.S. 262, 276 (1976)......Pg. 29

Kelly v. South Carolina, 534 U.S. 246, 250-51 (2002)...........Pg.

KINDER. Petitioner, V. BOLES, Respondent. 253 F. Supp. 817 (N.D.

W.Va. 1966)...........................................................................pg.

Lloyd SCHLUP. Petitioner. v Paul K. DELO. SuDerintendent. Potosi

Correctional Center. 115 S. Ct. 851 513 U.S. 298, 130 L.Ed.2d 808,

63 LJSI..AI 4089...................................................................pg.

MagnaCharta............................................................Pg. 20

MaDD v. Ohio. 367 U.S. 643, 81 S. Ct. 1684, 6 L.Ed.2d 1081

(1961) ................................................................................... pg.

Montgomery y Louisiana. 577 U.S. 136 S.Ct. 718, 193 L. Ed. 2d 599

(2016)....................................................................................Pg.36

Nelson v. Commonwealth, 143 Va. 579, 589-591, 130 S.E. 389, 392

(1925); ...............................................................................Pg.

10

Ocean Cas. Co. v Smith. 167, Va., 246,253 188 S.E. 210 213,

(1936)..............................................................................Pg.33

Rochin v. People of State of California, 342 U.S. 165, 72 S. Ct. 205,

96 L. Ed. 183 .................................................................... pg.

Rogers v. U.S., 422, U.S. 35, 39-40 (1975) ............................... pg.

Simmons v South Carolina, 512 U.S. 154, 161-62 (1994)........Pg.

Sims v. Commonwealth, 134 Va. 736, 759-760, 115 S.E. 382, 390

(1922) ....................................................................................... Pg.

STATUTES AND RULES:

Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S. Ct. 2078, 124 L.Ed.2d

182. ................................................................................. Pg.

TheBill of Rights........................................................Pg.33

The Due Process Clause of the U.S. Constitution................Pg.26

Thoughts on Bifurcated Sentencing in Non-Capitol Felony Cases in

Virginia 30 U. Rich L. Rev. 465 March 1996........................Pg. 32

U. S. v. Parent, 954 F.2d 23,-25 (1st Cir. 1992).....................Pg.

U.S. v Cowan. 819 F.2d 891,93 (5th Cir. 1987).......................Pg.

VA Code Ann. 17.1-801 (2011)..............................................Pg.

Washington v. Rencuenco. 546 U.S. 960, 163 L.Ed.2d 362, 74 USLW

3050, 74 USLAI 3242..................................................Pg.25

Webb v. Commonwealth, 768, S.E. 2d 696, 64 Va. App.

371(2015) ... Pg. 29

Williams v. Florida, 399 U.S. 78, 87, 90S. Ct. 1893, 1899, 26 L. Ed. 2d

446 (1970) ...................................................... Pg.22

Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 2991,

49 L.Ed.2d 944; .....................................Pg. 29

Young v. Commonwealth, 643 S.E. 2d 491, 273 Va. 528 .... Pg.27

OTHER:

11

OPINIONS BELOW

[]The opinion of the highest state court to review the merits

appears at Appendix A

to the petition and is unpublished.

The Virginia Supreme Court issued its decision refusing to hear this

case on 6 October 2017 a copy is attached at appendix B. The

jurisdiction of this Honorable Court is invoked under 28 U.S. C.

§1257(a).

13

CONSTITUTIONAL AND STATUORY PROVISIONS INVOLVED

U.S. Const. Amend. VI

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

accusations; to be confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defense.

U.S. Const. Amend. VII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel

and unusual punishments inflicted.

U.S. Const. Amend. XIV, sec, 1:

All persons born or naturalized in the United States and subject to

the jurisdiction thereof are citizens of the United States and of the

State wherein they reside. 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 laws.

14

STATEMENT OF THE CASE

THE LOWER COURTS REFUESED TO CHARGE JURIES WITH

INSTRUCTION ON VIRGINIA'S ABOLIHSMENT OF PAROLE DURING

PENALTY. PHASE DELIBERATION. THEY LATER HELD IT

UNCONSTITUTIONAL TO NOT INFORM JURIES OF VIRGINIA'S

ABOLISHMENT OF PAROLE, YET REFUSED TO APPLY THE HOLDING

RETROACTIVELY TO APPROXIMATELY 490 DEFENDANTS WHO

RECEIVED INFLATED SENTENCES.

THIS IS A CASE RELATED TO THE RENDERING OF INFLATED

SENTENCES UPON CRIMINAL DEFENDANTS BY THE COMMONWEALTH

OF VIRGINIA. THE COMMONWEALTH OF VIRGINIA FAILED TO

PROPERLY CHARGE PETITIONER'S JURY WITH INSTURCTION ON

THE CURRENT STATE OF THE LAW AT THE TIME OF HIS SENTENCING.

15

STATEMENT OF THE CASE

This is an appeal from judgment entered in the Circuit Court of

Loudoun County on 6 July 2016. Petitioner Jervon L. Herbin

Proceeding Pro Se filed a motion to" Vacate, Amend or Set Aside

Sentence Nunc Pro Tunc" before the Circuit Court of Loudoun County

on or about 20 June 2016.

Petitioner's motion was denied on 6 July 2016 by Honorable

Thomas D. Home, who appeared to come out of retirement to rule

upon Petitioner's motion. Judge Home also presided over

Petitioner's trial.

Though the said motion was denied on 6 July 2016 Mr. Herbin

did not receive notice of the motion's denial until 11 August 2016

because the Order was not mailed until 8 August 2016 which was

well after the time to notice appeal had elapsed. Mr. Herbin

Petitioned the Virginia Supreme Court for an extension of time to

16

notice appeal on or about 22 August 2016. On 26 August 2016 the

Virginia Supreme Court granted Mr. Herbin's motion for an extension

to notice appeal allowing him to timely notice appeal.

Background:

Petitioner Jervon L. Herbin after a three day trial by jury was

convicted of five felony counts stemming from a malicious wounding

case. Prior to jury Voire Dire, Mr. Herbin through trial counsel

moved to have the jury informed of Virginia's abolishment of Parole

in the event that he was convicted. The trial court denied

Petitioner's motion to inform the jury of Virginia's Abolishment of

Parole.

During penalty phase deliberations the jury sent question to

the trial Judge Honorable Thomas D. Home asking "What is the

minimum number of years that the Defendant will be required to

serve before he is eligible for parole if the jury recommends the

maximum sentence on each count?" At this time Petitioner's defense

counsel immediately renewed Mr. Herbin's motion to inform the jury

of Virginia's Abolishment of Parole. The said motion was again

denied. Judge Home instructed the jury to not concern themselves

17

with what would happen to the defendant after sentencing. The jury

returned with a sentence of ninety-two years imprisonment.

Mr. Herbin pursued the matter on Direct Appeal, the Virginia

Court of Appeals refused to hear the issue of failure to charge the

jury with instruction on Virginia's abolishment of parole. As did the

Supreme Court of Virginia. Petitioner then pursued matter via

Habeas Corpus in Federal Court; again Mr. Herbin was unable to

attain relief due to being procedurally barred. Mr. Herbin then

appealed to the Fourth Circuit and again was denied opportunity to

be heard, resulting in the denial of relief.

Next Mr. Herbin filed a Motion to Vacate, Correct or Amend

Sentence Nunc Pro Tunc in the Circuit Court of Loudoun County

where it appears Hon. Thomas D. Home, came out of retirement to

rule upon Mr.Herbin's petition which was erroneously denied. Mr.

Herbin then sought relief from the Supreme Court of Virginia who

denied certiorari due to procedural error. Mr. Herbin now seeks

relief from this Honorable Court.

18

REASONS FOR GRANTING THE PETITION

I.

THE COURT SHOULD GRANT THE WRIT TO DECIDE

WHETHER A STATE COURT CAN GRANT A RIGHT

GARAUNTEED BY THE U. S. CONSTITUTION TO SOME AND

DENY JUSTICE TO SOME BASED UPON REFUSAL TO

RETROACTIVELY EXTEND THAT SAME RIGHT TO OTHERS

SIMULARILY SITUATED.

19

II.

THIS COURT SHOULD GRANT THE WRIT TO

DETERMINE IF FISHBACK'S HOLDING APPLIES TO

PETITIONER'S CASE, WHICH IS BASED UPON THE

IDENTICAL ISSUE PRESENTED IN PETITIONER'S

CASE.

20

ARGUMENT

The term "Due Process of Law" is a direct descendant of Magna

Charta's promise of a trial according to the "law of the land" as it

has been established by the law making agency, constitutional or

legislative. No one has ever been able to point to a word in our

constitutional history that shows the Framers ever intended that the

Due Process Clause of the Fifth or Fourteenth Amendment was

designed to mean any more that the defendants charged with crimes

should be entitled to a trial governed by the laws, constitutional and

"Statutory," that are in existence at the time of the commission of

the crime and of the trial. The concept of Due Process under which

Court's purport to decide questions is that Court's look at" the

Totality of the circumstances" of a particular case to determine in its

own judgment whether they comport with the Notions of decency,

fairness, and fundamental justice, and if so declares they comport

with the Constitution, and if not declares that they are forbidden by

the Constitution.

It is well settled that in cases where a criminal defendant has

demanded exercising of his right to trial by jury of his peers that it

21

belongs to the Trial Court to instruct the jury on the current state of

the law. It is further well settled that proper instruction to the jury

is consistent to the rudimentary standards of "Fundamental

Fairness, Due Process, and Equal Protection of the Laws."

One of the "Fundamental American Concepts" is that no man be

deprived of "Life, Liberty, or Property" without "Due Process of

Law." Due Process, and Equal Protection are fundamental tenants of

the American Jurisprudence system, both of which ensure the Right

to Trial by Fair and Impartial Jury. The achievements of these

objectives are essential to the Ends of Justice. The Right to Jury Trial

guaranteed by Amendments Six, and Fourteen to the Constitution of

these United States, and Article One of Section Eight of the

Constitution of Virginia is a Fundamental Right Essential to the

preventing of Miscarriages of Justice, and the assurance of fair trials

provided to all defendants. Duncan v. Louisiana, 391 U.S. 145, 158,

88 S. Ct., 1444, 1452, 20 L. Ed. 491 (1968)

In Duncan the High Court held "Trial by jury in serious criminal

cases has long been regarded as an Indispensable Protection

against the possibility of governmental oppression;" the history of

jury's development demonstrates" a long tradition attaching great

importance to the concept of relying on a jury of one's peers to

determine guilt or innocence as a safeguard against arbitrary law

22

enforcement." Williams v. Florida, 399 U.S. 78, 87, 90 S. Ct. 1893,

1899, 26 L. Ed. 2d 446 (1970)

In Virginia criminal trials are bifurcated, the jury that renders

the verdict of guilty or not guilty tenders the defendant's sentence.

It is the jury in Virginia, not the Judge that hands down the sentence

of a convicted defendant. See Code of Virginia 19.2-295

In the early 1990's Virginia adopted the "Truth in Sentencing

Policy" that was instrumental in the abolishment of parole. Truth in

Sentencing in part was adopted because of the public's confusions

as to how much time a convicted criminal defendant would actually

serve in prison. Many citizens who are jury service eligible believed

that upon conviction, a defendant sentenced to prison would only

actually serve about 20% (twenty percent) of the sentence handed

down. Truth in Sentencing instituted the 85% (eighty-five percent)

rule otherwise known in Virginia as the "New Law." The New Law

went into effect January 1, 1995. However, the rules of jury

instruction were not amended or modified to accommodate the New

Law in trial by jury. The Court's in Virginia steadfastly and

unconstitutionally refused to inform sentencing juries of Virginia's

abolishment of parole during penalty phase deliberations of criminal

trials. This steadfast refusal to charge juries with the current state

23

of the law was based upon an outdated holding in Coward v.

Commonwealth, 178 S.E. 797, 164 Va. 639 (1935).

Mr. Herbin sought to have the jury that convicted him

instructed on the law concerning Virginia's abolishment of parole

thrice to no avail. He properly preserved the issue and then perused

the matter vigorously of collateral review. He now petitions the High

Court to settle this matter.

In June 2000 the Supreme Court of Virginia changed course on

the matter of informing juries of Virginia's abolishment of parole

during the penalty phase of trials. In Its consideration The Court

concluded by acknowledging that "Truth in Sentencing is a goal to

be desired in the Judicial Process." The Court further reasoned that"

a jury should not be required to perform the critical and difficult

responsibility of fixing a defendant's specific term on confinement

without the benefit of all significant and appropriate information

that would avoid the necessity that the jury speculate or act upon

misconceptions concerning the effect of their decision." See;

Fishback v. Commonwealth., 260 Va. 104, 116, 532 S.E. 2d 629, 634

(2000)

Under the American system of Jurisprudence the functions of

the judge and jury are separate. The jury must perform its function

24

in accordance with the law. However, if the judge refuses to afford

the jury with the tools required to serve its function, thus refusing to

tell the jury what the law mandates, that judge is in effect nullifying

the jury of its function absolving them of the constitutional duty they

were sworn to do. In doing so the judge is making the proceedings

of bifurcated trial by jury a "Bench Trial." How can laymen/laywomen be expected to perform the duty of deciding whether and

how long a defendant is to be stripped of his liberty if they are not

charged with the current state of the law applicable at that

particular time? Or how can that same jury render an appropriate

decision at a particular time if they are charged with "outdated"

law?

Refusal to submit a sentencing factor to a jury constitutes a

"Structural Error." See; Washington v. Rencuenco 546 U.S. 960, 163

L.Ed.2d 362, 74 USLW 3050, 74 USLW 3246. A jury instruction regarding

the matter of parole is proper, because it serves to eliminate a

common misconception that a defendant will only serve a small

portion of a jury's sentence. See; Fishback Supra. This holds true in

Herbin, it is obvious that Herbin's jury sentenced him under the

misconception that he'd only serve a small portion of the sentence

handed down. It speaks volumes to this fact that the jury sent

question to the trial judge during penalty phase deliberations

25

asking ...... "What is the minimum number of years that the

Defendant will be required to serve before he is eligible for parole if

the jury recommends the maximum sentence

Sentence?" That same jury never imposed any life sentence. It is

obvious that the jury felt that Mr. Herbin should at some point in his

life reenter society, that he is redeemable.

In Virginia, when a defendant is arraigned, when he is brought

before the Court on a plea of guilty, the Court upon that plea by

virtue of the Supreme Court of Virginia Instruction, routinely ask "Do

you know that if you are sentenced to time served, you must serve

at least eighty-five percent of that." To give that information to a

defendant but not to the jury, the very people who are going to

impose a sentence upon a defendant who chose to exercise his right

to trial by jury is a violation of the Equal Protection and Due Process

Clauses because he is being treated differently for exercising his

right. That is a constitutional issue deserving of relief from this

Court.

A "Structural Error" is a" Defect in a trial mechanism or

framework that, by deprivation of basic Constitutional Protections,

taints the trial process, making it unreliable, and rendering any

26

punishment fundamentally unfair." This effort is prejudicial. It is

well settled that in Virginia criminal trials by jury are bifurcated.

Thus the penalty phase of a jury trial is indeed part of the trial itself.

See; Young v. Commonwealth, 643 S.E. 2d 491, 273 Va. 528

This is not a question of the instant action being meritorious,

because it is "Prima Facie." The legal issue(s) here are of

constitutional magnitude. Chief among them is "Retroactivity" as a

means of attaining "The Ends of Justice." Justice empowers this

Honorable Court to reach and serve the "Ends of Justice" even in

matters that call for "Nunc Pro Tunc" application of Justice. The

Trial Court in response to Petitioner's Motion to Vacate, Correct or

Amend Sentence Nunc Pro Tunc, never held or denied the fact that it

is within the Authority and Power of the Court to remedy the

unconstitutionality in this matter. When a jury has no sentencing

function, it should be admonished to reach its verdict without regard

to what sentence might be imposed. But when the jury does have a

sentencing function then what? Necessity, Requisites, and

Sufficiency are matter of law in general." Regardless of how

overwhelming the evidence may point in a particular direction, the

Trial Judge is... barred from attempting override or interfere with the

"Jurors" independent judgment in a manner contrary to the interest

of the accused."

27

The Trial Court interfered with the jury in Herbin by failing to

properly and adequately charge them with the current state of the

law on Virginia's abolishment of parole at the Jury's independent

request to be informed of what the law mandated. In refusing to

charge the jury with the current applicable state of the law, no

instruction had the same effect as a defective instruction and for

constitutional purposes is one in the same.

The rationale given for the Trial Court's refusal to inform

Herbin's jury of Virginia's abolishment of parole was base on Coward

v. Commonwealth, 178 S.E. 797, 164 Va. 639 (1935). The Coward

rule though longstanding is not without exception.

Indeed in Fishback v. Commonwealth. 260 Va. 104, 116, 532 S.E. 2d

629, 634 (2000) The Supreme Court of Virginia reconsidered the

policy underlying the Coward Rule in light of statutory enactments.

These separate holdings in Fishback illustrate an import between

instructions that properly further the goal of "Truth in Sentencing"

removing the possibility that a jury will act upon misconceptions,

and those instruction that have the improper effect of inviting the

jury to speculate concerning the likelihood of future action that may

ultimately affect the length of a defendant's incarceration.

If jurors are potentially misled concerning their role in

sentencing, the" Eighth Amendment's heightened" Need for

28

Reliability" may require relief because the sentencing jury does not

have before it all possible relevant information about the individual

whose fate it must determine. Case." Caldwell v. Mississippi, 472

U.S. 320, 340 (1985); See also Woodson v. North Carolina, 428 U.S.

280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944; See also;

California v. Ramps, 463 U.S. 992,103 S.Ct. 3446, 77 L.Ed.2d 1171.

For the jury to possess all relevant information, it must receive an

accurate description of its role in the sentencing process. Jurek v.

Texas, 428 U.S. 262, 276 (1976) See also; Code of Virginia 53.1165.1

The right to have the jury perform both the determination of

guilt and the fixing of punishment is part of the "Right to Trial by

Jury" as proscribed by Amendment Six to the Constitution of these

United States. Webb v. Commonwealth, 768, S.E. 2d 696, 64 Va. App.

371 (2015). Indeed, it is highly questionable that the practices

used during the Herbin trial to sentence Mr. Herbin is anything like

the Framers of the U.S. Constitution envisioned. It is difficult to

believe that James Madison and his colleagues would have gone

through all the trouble of placing the "Trial Rights" at the heart of

the "Bill of Rights" if they knew that the invocation of those rights

would be the [rare] exception rather than the rule in the penalty

phase of the trial(s) of Mr. Herbin and others.

29

Virginia's sentencing practices applicable at the time of the

Herbin trial in part come from the "Virginia Sentencing Commission"

and their genesis can be traced back to a 1983 Governor's Task

Force on unwarranted Sentencing disparities. Eventually, the task

force was formed in 1994. The purpose of this system was to

achieve the goals of certainty, consistency, and adequacy of

punishment. Code of Virginia Annotated 17.1-801 (2011). The

General Assembly, to ensure the imposition of appropriate and just

criminal penalties enacted these measures. It is unconstitutional to

steadfastly refuse to allow jurors access to the law on the

abolishment of parole, then conclude this as true, yet deprive those

who have suffered this constitutional infirmity no relief due to any

retroactive application of the holding.

According to the U.S. Supreme Court, the unconstitutional

conditions doctrine "vindicates the Constitution's enumerated right

by preventing the Government from alienating people from them."

"Even if a state has absolute discretion to grant or deny a privilege,

or benefit, it cannot grant the privilege subject to conditions that

improperly "coerce," "pressure," or induce the waiver of

constitutional rights." Stated another way, "The Government may

not grant benefit on the condition that the beneficiary surrenders a

constitutional right, even if the government may withhold that

30

benefit altogether." In other words it holds the proverbial carrot

and stick in equal regard- the government may not indirectly do

what they cannot through force or punishment." Mr. Herbin was

punished by the Trial Court's refusal to charge the jury with the

state of the law on the abolishment of parole despite the jury and

Mr. Herbin so asking they be instructed on the matter.

The application of the "Constitutional Conditions Doctrine" in

this area is indeed fitting and appropriate. It is well settled which

right(s) the Commonwealth of Virginia violated in Herbin and how

they were violated. The obvious right(s) here are Amendment(s)

Six, Eight, and Fourteen to the Constitution of these United States,

Article II Clause III, and Article One Section Eight Constitution of

Virginia. "Ironically, The trial Judge Hon. Thomas D. Home penned

legal article on the "penalty phase of the jury trial' prior to his

presiding over the Herbin trial. Judge Home's article appears to

pose ambiguity with his practices during the Herbin trial. Though

one may attempt to argue that Judge Home was following the

Coward rule (See Coward v. Commonwealth supra) , Judge Home in

his article stated the exact opposite of what he ruled Petitioner's

trial when the question of charging the jury with the current and

applicable state of the law on Virginia's abolishment of parole. Judge

Home at one point said that he would leave the matter up to

31

Richmond to resolve. In the same spirit in conjunction with his

article Judge Home's refusal to charge the jury with instruction on

the law and leave the matter up to Richmond (the Virginia Supreme

Court) is one indicator of his extreme prejudice against Mr. Herbin.

To quote Hon. Thomas D. Home, "The Punishment stage of a

jury trial poses a difficult test for the conflicting attitudes and

opinions of individual jurors." "In the search for a mature, well

-

reasoned, and 'educated' verdict, (How can any jury reach an

educated verdict if they are not educated by instruction from the

trial court on what the law mandates?) an understanding of the

sentencing process by those controlling the flow of information is

the best insurance against decisions which spring from "passion,

prejudice, and personal bias."

It stands to reason that Judge Home either lacked the very

same understanding of the law that he writes about or that his

decisions springs from personal bias as he so eloquently put it. (See:

Some Thoughts on Bifurcated Sentencing in Non Capitol Felony

Cases in Virginia 30 Rich. L. Rev. 465 March 1996) It is important to

note that Judge Home penned the above cited article exactly one

year before presiding over Petitioner's trial. Moreover, Judge Home

was well aware of the fact that once Mr. Hembin's prior criminal

convictions were introduced into evidence Mr. Herbin was

32

constitutionally entitled to have the jury charged with instruction on

Virginia's abolishment of parole.

Judge Home further goes on to advance that" Any criticism of

jury sentencing because it lacks the objectivity and principled

decision of a judge is thus overcome by the existence of the power

of the trial judge to bring his so-called superior judgment to bear

upon the issue of proper punishment in reaching his decision

whether to suspend the sentence or not." Simply stated, Judge

Home wrongly concludes that at the end of the day he the trial

judge, not the U. S. Constitution and the Constitution of Virginia is

the ultimate authority in the/his courtroom.. this is made evident by

the ambiguity in what he pens and what he actually did in the Herbin

case. In the Herbin case it is obvious that Judge Home had

apprehensions about the jury being what he felt was too or even

lenient in the sentence that they would hand down to Jervon L.

Herbin. He then writes that "Only relevant admissible evidence

related to punishment may be considered by the jury." Is not the

current state of the law in Virginia abolishing parole to a defendant's

pending sentencing relevant? Especially in lieu of the fact that the

jury asked for instruction on the law concerning the matter?"

The application of Coward to the penalty phase of Mr. Herbin's

trial a clear violation of the "Due Process and Equal Protection

33

Clause(s) of the United States Constitution as well as the Prohibition

of Cruel and Unusual Punishment, and the Sixth Amendment's Rights

associated with the trial process?"

Mr. Herbin was entitled to have the jury instructed during the

penalty phase of his trial that Virginia had abolished parole; the

introduction of Mr. Herbin's prior felony convictions ( one of which

was under Federal Seal because Mr. Herbin was sentenced under the

Federal Youth Corrections Act 18 U.S.C.A. § 5010, obtained in an

improper manner.) may have led the jury that sentenced him to

believe that he would be eligible for parole, and as was the case in

his previous conviction that he would only serve a portion of his

sentence and be paroled. It is well settled that juries are not to be

left to speculation when determining the length of a defendant's

imprisonment or sentence in general. Evidence of prior sentences

may lead the jury to speculate that parole is still available to the

defendant; a trial judge is "Required to instruct the jury that Virginia

has abolished parole."

It is indeed a maxim of the law, almost coeval with the

institution of juries, that it is the office of the judge to respond as to

the law, and the jury as to the facts. And few rules are more

essential in the administration of justice. It is sufficient for the trial

court to give such instructions as are necessary or proper to enable

34

the jury to arrive at a just conclusion. A party can only require the

court to pass upon the propositions of law that he or she submits. If

the instruction asked for is so equivocal that to refuse to charge the

jury with it might mislead the jury; in such a case it is proper for the

courts to rectify this omission. "The duty of the court in trial by jury

to instruct the jury 'PROPERLY' is, however, broader in criminal

cases." If a principal of law is vital to a criminal defendant, the trial

court has an affirmative duty to instruct the jury properly about the

matter. Thus even if a defendant's instruction is defective, the

court may not merely ignore the instruction but must amend it and

give it to the jury in proper form. Bryant v. Commonwealth. 216 Va.

390,393,219 S.E.2d 669, 671 (1975).

Moreover, the fact that the defendant did propose an

instruction and did not object to the instruction given does not

necessarily preclude the defendant from raising the issue on appeal,

if the lack of instruction clearly led to an unjust holding.

Jimenez v. Commonwealth 241. Va. 244,251, 402 S.E. 2d 678, 681

(1991). It is error to devolve the determination of a mixed question

of law and fact upon the jury without sufficient instruction on the

law. Inter-Ocean Cas. Co. v Smith, 167, Va, 246,253 188 S.E. 210

213, (1936). It is then for the jury after proper instruction on the

law to make its determination concerning the length of a defendant's

35

sentence without misconceptions as to how much time he will

actually serve in prison.

Any rule that raises substantial doubt about the reliability of

the jury's conclusions should be applied "Retroactively" see;

Brown v Louisiana 100 S. Ct. 2214,477, U.S. 23 (1980) The

retroactive application of Fishback will not have a devastating

impact upon administration of justice in criminal law, since it

appears that the class of defendant's is relatively small. Moreover,

favorable ruling in the instant action will not affect the validity of all

similar matters obtained under the previous unconstitutional

sentencing practices during the period of 1995-2000.

The constitutional principle announced in holding that juries in

Virginia must be told of Virginia's abolishment of parole for penalty

phase deliberation purposes held it to be "Unconstitutional" to not

do so. Petitioner asserts that failure to charge his jury with the

current and applicable state of the law violates his rights under the

Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution.

Therefore, Fishback supra must be given retroactive application in

the instant action to remedy the constitutional infirmity. See;

Brown v. Louisiana, 100 S. Ct. 2214 447 U.S. 323, 65 L.Ed.2d

159(1980); See also; Montgomery _v. Louisiana, 577 U.S. 136 S.Ct.

718, 193 L. Ed. 2d 599 (2016)

36

To withhold the fact that the law mandated the abolishment of

parole from a sentencing jury who asked the Trial Court for

instruction on the matter for the purpose of determining the

parameters of parole concerning how long Jervon L. Herbin should

or would be deprived of his liberty clearly does not convey

accurately the state of the law. The jury clearly thought or felt Mr.

Herbin should be sentenced to less than the maximum sentences

and less than he actually received, and is actually serving. In

senescence the jury was deceived or rather mislead. They assumed

parole would be available to Mr. Herbin.

The holding in Fishback v. Commonwealth, led to disparate

treatment of similarly situated defendant's in that some received the

benefit of Fishback's holding, while others were left subjected to

"Prejudicial Error." Refusal to give Fishback retroactive effect

resulted in "Unequal Treatment" of those who are similarly situated.

Instructing the jury on the law is implicit to the concept of "Ordered

Liberty." Here liberty in indeed at stake; certainly the penalty phase

of criminal trial by jury is strictly about liberty. The Framers of the

Constitution placed emphasis on the value of a man's liberty, in one

way or another most of the assurances in the Bill of Rights, and the

Constitutions are related to liberty. When liberty is at stake it must

37

be protected, restored where necessary and honored at all times.

There must be a mechanism to ensure that a man's liberty is not

arbitrarily deprived.

RETROACTIVITY

In the instant action that mechanism in "Retroactive"

application of the HOLDING in Fishback v. Commonwealth.

Consideration for retroactive application is far from novel.

Retroactivity is properly treated as a threshold question, for once a

new rule is applied to the defendant in the case announcing the rule,

and even handed justice requires that it be applied to all who are

similarly situated. Here the very fabric of the institution of trial by

jury has not just been torn; it has been shredded by the Trial Court's

refusal to instruct the jury on the law. No instruction is tantamount

to defective instruction; defective instruction does not accurately

state the law in effect at the time in question. In Herbin, the

instruction given by the trial court did not accurately state the law in

effect applicable to Mr. Herbin's sentencing .... The operative word

here is "Accurate:" which is defined as" Being in Exact Conformity

to Fact, Precise, and Errorless."

38

In the instant action, Mr. Herbin has been deprived of his

liberty and is in custody in violation of the Constitution, Laws, or

Treatise of the United States. Mr. Herbin's liberty is being

unconstitutionally restrained, as concluded in Fishback. This Court

has within Its Jurisdiction, and power to remedy the

unconstitutionality of this matter. Petitioner offers/advances here

that the better or more fusible course is to GRANT Certiorari in the

instant action and resolves the question after full briefing, and oral

argument. This matter not only affects Mr. Herbin, it also affects

hundreds of other defendants similarly situated. Moreover, Virginia

is not the only state in which juries sentence convicted defendants.

Constitutional adjudications don't stand as "Mere Dictum." Because

Mr. Herbin's claim(s) here are indeed meritorious," Prima Facie," the

"Retroactivity" question must be addressed. To not fully hear the

instant action will result in the continued ambiguity and leave

hundreds of other defendants without justice.

CONCLUSION

In this country man walks with dignity and without fear. His

profound love for freedom and the rights of all men is imbedded in

the foundation of his government. The Constitution of these United

39

States. It guarantees certain fundamental rights and liberties to

every human being under its jurisdiction. It is a flexible document

designed to meet the needs and "ever changing conditions of

American Life."

Each year in December our Nation honors a part of the

Constitution known as the "Bill of Rights," the first ten amendments

to the constitution of these United States, guarantees of individual

liberty. To appreciate the interpretation places upon some of the

Amendments by the U.S. Supreme Court, knowledge of the facts of

history are indispensible.

In 1787 when the constitution was first adopted there was no

Bill of Rights. Many people believed that there were not enough

specific limitations on the power of the central government. As a

result of these demands the states were assured that if they would

ratify the constitution as it then stood amendments would be

forthcoming, guaranteeing addition of individual rights. Thus the

constitution was ratified. On December 15, 1791 the "Bill of Rights"

Became part of the "Law of the Land, the price of ratification. It

must however, be emphasized that the "Bill of Rights" did not

protect the people against abuses by state government; it protected

them only against Federal abuses.

40

In 1833 U.S. Supreme Court Justice Hon. John Marshall in

referring to the first ten amendments made it clear that the

amendments did not apply to local governments. The Amendments

at that time only protected against "Federal" encroachments, thus

the High Court was powerless to enforce them upon the state

government. Chief Justice Marshall held that Amendments contained

no expression indicating any intention to make the enforceable upon

state government. Thus making the High Court powerless to enforce

them due to lack of jurisdiction.

When the "Fourteenth Amendment" became law many decades

later, it applied restriction on state government. (Due Process has

never been fully defined in regards to just what it means. Its most

literal meaning would probably be "Reasonable and Proper

Procedure" in meting out justice.)

Can it honestly be said that refusal and failure by the trial court

to charge the jury with exactly what the law states despite that jury

asking the trial court for instruction on the law regarding a specific

area of the law was reasonable, proper and in compliance with" Due

Process?"

When the Framers of America's Constitution commenced to

drafting the glorious ideals that serve as a blue print for our

Democracy, a democracy that has become a beacon of light upon the

41

hill of the world serving as a lighthouse guiding not only men,

women, citizens, aliens and all, but nations, colonies, territories

and dwellings as well. The Framers of our constitution were guided

by the Hand of God in part and the tyranny of England that the

original settlers sought to escape by come to this the new world.

They left England in search of freedom, liberty, democracy, judicial

fairness, the right to develop and peruse their God given talents and

rights. All of which they were deprived of before founding this

nation. It was and still is that yearning for these God given rights

that permeate all that America is, has been, and will be for

generations to come.

This search no doubt influenced the conception of the" Bill of

Rights," the assurances of" Due Process, Equal Protection of the

Laws, Fundamental Fairness, the Right to Trial by fair and impartial

Jury," inter ailia. These and all of the assurances of the Constitution

of these United States are deemed" Inalienable Rights," that must

be respected, honored and upheld no matter what. They must be

respected in times of trouble, and periods of calm. These rights are

not timid nor are they fair weather assurances; they stand on an

unshakeable foundation as the backbone of all that America stands

for. Without their assurances, the United States of America would

42

be no different that the communist nations She so adamantly has for

centuries distinguished Herself as different from.

No one is free to circumvent the guarantees that were handed

down to each generation of "American Citizens, "no matter how that

individual feels about a set of given circumstances. NEMO EST

SUPRA LEGIS! In this country the Constitution is the Supreme Law

of the Land. The very constitution whose ideals many have fought

for, bled for, died for gladly giving their lives to protect and defend.

If jurors are potentially misled concerning their role in

sentencing, the Eighth Amendment's heightened" Need for

Reliability" Caldwell v. Mississipph 472 U.S. 320, 340 (1985); See

also; Woodson v. N.C. 428 U.S.280, 304 (1976) which may require

relief because the jury does not have before it all possible relevant

information about the individual whose fate it must determine. For

the jury to Posses all relevant information, it must receive an

accurate and adequate description of its role in the sentencing

process. Jurek v. Texas. 428 U.S. 262, 276 (1996); See also Caldwell

supra.

In Herbin the jury did not receive an accurate description of its

role in the sentencing process when the trial judge erroroniously

refused to charge the jury with instruction on the abolishment of

parole in Virginia. This caused or rather led the jury to believe that

43

the responsibility for determining when or whether Mr. Herbin would

get out of prison rested elsewhere. Charging Mr. Herbin's jury with

the current and accurate state ofthe law was" Constitutionally

Indispensible." Juries must receive instruction(s) that accurately

characterize their sentencing choices. California v Ramps, 463 U.S.

992, 1004 103 S. Ct. 3446, 77 L..Ed.2d 1171 (1983); See also;

Gardner v. Florida, 430 U.S. 349, 361-62 (1977)

If circumstances make a defendant ineligible for parole,

however, accurate characterization of sentencing choices requires

juror's awareness of eh circumstances. See; Simmons v. South

Carolina, 512 U.S. 154, 161-62 (1994); See also;

Kelly v. South Carolina, 534 U.S. 246, 250-51 (2002) In Herbin, the

New Law made him ineligible for parole. The Trial Judge's refusal to

instruct the jury on the abolishment of parole "Had the effect of

creating a false perception of parole being available to Mr. Herbin.

Because this inaccurate information concerning the abolishment of

parole led the jury to believe parole was available to Mr. Herbin

inducing the jury to impose a sentence greater than they intended

Mr. Herbin actually and truly serve. A harsher sentence based upon

misconception resulting in violation of Due Process.

44

This Court should make sure that Fundamental Fairness, Due

Process, and the Equal Protection of the Laws be afforded to Mr.

Herbin as assured by the U. S. Constitution by ensuring that the

Virginia Supreme Court knows to what extent they are free to

interpret Her own rulings to provide greater protection to Her

citizens.

The primary purpose behind Teague was to limit the scope of

federal habeas review of state criminal convictions. It was not to

achieve uniformity of results among the fifty states. See; Mary C.

I4hIJI!L!EW1iFI•].i

State Post conviction Remedies. 44 Ala. L. Rev. 421, 449-58

(1993)(arguing that states should follow broader retroactively

principles than those announced in Teague; describing the notion

that states are bound to follow Teague as "mistake"). The Teague

standard was not designed for state courts, and it certainly was not

designed to bind state courts. The Court should grant the petition for

writ of certiorari on this issue and the issues set forth in this

petition.

Respectfully submitted,

g'35' 'Jefvon L. Herbin,

;

ituoner Pro Se

"'NVVE

/ Fg

45