Petition for Writ of Certiorari — Jason Allen Tiszai, Petitioner v. Florida

Supreme Court briefJan 4, 2019

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IN THE

SUPREME COURT OF THE UNITED STATES

--------------

I i GN A L

Supreme Court, U.S.

FILED

JAN 042019

JASON ALLEN TISZAI,

Petitioner,

OFFICE OF THE CLERK

VS.

SECRETARY, FLORIDA DEPARTMENT

OF CORRECTIONS, et al,

Respondent(s).

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEAL

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

FRIECEIVED

JASON TISZAI DC #D35514

2019

OKEECHOBEE CORRECTIONAL INSTITUTIO

cLEI

CM'

3420 N.E. 168th STREET

OFFICE OF THE

OKEECHOBEE, FLORIDA, 34972

QUESTION(S) PRESENTED

WHETHER THE STATE OF FLORIDA VIOLATED

PETITIONER'S CONSTITUTIONAL RIGHT TO A

SPEEDY TRIAL INVOKED BY PETITIONER

PURSUANT TO ARTICLE 3(a) OF THE INTERSTATE

AGREEMENT ON DETAINERS ACT (IADA)?

WHETHER THE STATE COURT'S DETERMINATION

OF THE FACTS UNREASONABLE, WHERE THE

FACTS OF PETITIONER'S CASE WERE IDENTICAL

TO OTHER DEFENDANTS WHO WERE GRANTED

RELIEF PURSUANT TO THIS COURT'S HOLDING IN

FEX v. MICHIGAN.

WHETHER THIS COURT SHOULD ACCEPT

JURISDICTION TO RESOLVE THE CONFLICT IN

THE FEDERAL COURTS REGARDING THE ISSUE

PRESENTED IN QUESTION ONE HEREIN.

LIST OF PARTIES

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:

111

TABLE OF CONTENTS

Contents

Pages(s)

Question(s) Presented.................................................................................................ii

List of Parties............................................................................................................ iii

Tableof Contents .....................................................................................................iv

Indexto Appendices ...........................................................................................

....... 5

Table of Authorities Cited .................................................................................. vi, vii

OpinionsBelow ............................................................................................................................ 1

Jurisdiction.................................................................................................................2

Invoking The Court's Jurisdiction ......................................................................... 3, 4

Constitutional and Statutory Provisions Involved..................................................... 5

PreliminaryStatement...............................................................................................?

Statementof the Case.............................................................................................6-8

Reasonfor Granting the Writ...............................................................................9-21

Conclusion...................................................................................................................

Proofof Service...........................................................................................................

Certificateof Compliance ...........................................................................................

IMA

INDEX TO APPENDICES

Appendix A1-A3

Decision of the State Court of Appeal.

Appendix B

Decision of the State Court.

Appendix Cl -05

"Prisoner kites to MDOC Records Office"

Appendix Dl-D2

Certified mail return receipts from Orange

County Circuit Court and Orange County

Sheriffs Dept.

Appendix El -E2

Notice for Request for Final Disposition

filed by Petitioner to Orange County Circuit

Court and Orange County Sheriffs

Department.

Appendix F1-F2

Response from Orange County Circuit Court

Clerk and Orange County Sheriffs Dept. to

Petitioner's Notice for Request for Final

Disposition.

Appendix G

Informal Notice of Inquiry to Orange

County Sheriffs Dept.

Appendix H

Order for Petitioner's Stricken pro se Notice

of Expiration filed pursuant to Fla. R. Crim.

P. 3.191 (p) (2).

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER(s)

Alabama v. Bozeman, cited as 121 S. Ct. 2079..................................................20

Anderson v. Jungkace, 329 U.S. 482, 67 S. Ct. 428, 91 L. Ed. 436 ....................20

Brown v. Wolff, 706 F. 2d 902, 906 (9th Cir 1983) ............................................19

Carchmanv. Nash, 473 U.S. 716, 105 S. Ct. 3401, 87L.Ed. 2d516 (1985).... 12

Carchman v. Nash, 473 U.S. 716, 719 (198 5) .................................................... 10

Casper v. Ryan, 822 F. 2d 1283 (3rd Cir. 1983)..................................................14

Casper v. Ryan, 822 F. 2d 1283 (3rd Circuit 1983).............................................18

Cody v. Morris, 623 F. 2d 10 1, 102-03 (9th Cir. 1980).......................................19

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 477, 95 S. Ct. 1029 (1975) ......3

Cuyler v. Adams, 449 U.S. 433, 448-450, 101 S. Ct. 703, 711-12, 66 L. Ed. 2d

641 (1981) .......................................................................................................10

Davis v. United States, 417 U.S. 333, 346 (1974)..............................................19

Duquesne Light Co. v. Barasch, 109 S. Ct. 609 (1989)........................................4

Duquesne Light Co. v. Barasch, 109 S. Ct. 609 at 611(1989).............................3

Fex v. Michigan, 507 U.S. 43 (1993)............................................................10, 16

Fex v. Michigan, 507 U.S. 435 44 (1993)............................................................18

Johnson v. Stagner, 781 F. 2d 758, 761 (9th Cir. 1986) ......................................11

Nash v. Jeffes, 739 F. 2d 878 884 (3re Cir. 1984)..............................................12

Sesmore v. Ala., 846 F. 2d 1355, 1359 (11th Cir. 1988).....................................19

Tiszai v. State, 90 So. 3d 304.............................................................................1, 8

Tiszai v. State, 90 So. 3d 304 (Fla. 51DCA 2012)...............................................1

U.S. v. Dent, 149 F. 3d 180...........................................................................14, 19

U.S. v. Reed, 910 F. 2d 621 (9th Cir. 1990).........................................................18

U.S. v. Reed, 910 F. 2d 621, 624 (9th Cir. 1990) ................................................14

U.S. v. Smith, 696 F. Sup. At 1384-85 ...............................................................12

U.S. v. ZFaty, 44 F. Supp. 2d 588 (S.D.N.Y. 1999)...........................................19

United States v. Mauro, 436 U.S. 340, 361-62, 98 S. Ct. 1834, 1848, 56 L. Ed.

2d329(1978) ..................................................................................................10

United States v. McConney, 782 F. 2d 1195, 1202 (9th Circuit 1984) ............... 11

United States v. Moline833 F. 2d 1909 192 (9th Circuit 1987) ..........................12

United States v. Reed, 910 F. 2d 621 (9th Cir. 1990)..........................................13

United States v. Smith, 696 F. Supp. 1381, 1383 (D. Or. 1988) ........................12

United States v. ZFaty, 44F. Supp. 2d 588 (S. D. N. Y. 1999)

. 13

Williams v. Taylor, 529 U.S. 362 (2000)............................................................18

STATUTES AND RULES

Fla. R.Crim.P.3.191(p)2 ....................................................................................... 7

Fla. Stat. § 782.01 (1)(a)(1).....................................................................................6

Fla. Stat. § 810.02 (2).................................................................................................6

Fla. Stat. § 812.14 (c) 6 .............................................................................................6

Fla. Stat. § 941.45 ................................................................................ 3,4,5,8,9, 19

Fed. R. Civ. P., Rule 60(b) & 60(d) ......................................................................3, 4

18U.S.C. App. 2 ...................................................................................................9,

18 U.S.C. App. §2, Article 3 (c)..............................................................................19

18 U.S.C. App. § Article 1 ......................................................................................12

28 U.S.C. §1257 (1982ed) ......................................................................................... 4

28 U. S. C. § 1257(a).........................................................................................

2, 3, 4

28 U.S.C. §1651(a) ................................................................................................ 3,4

vii

IN THE

SUPREME COURT OF THE UNTIED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

For cases from federal courts:

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

to the petition and is

reported at

;or,

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

F-1 is unpublished.

The opinion of the United States district court appears at Appendix

petition and is

to the

LJ reported at

;or,

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

LI is unpublished.

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 Tiszai v. State, 90 So. 3d 304 (Fla. 5th DCA 2012) ;or,

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

is unpublished.

Th opinion of the

court to review the merits appears at Appendix

to the petition and is

;or,

LI reported at

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

LI is unpublished.

JURISDICTION

For cases from federal courts:

The date on which the United States court of Appeals decided my case was.

LI No petition for rehearing was timely filed in my case.

LII 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

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

granted to and including

(date) on

(date) in

Application

No.

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

For cases from state courts:

The date on which the highest state court decided my case was July 5, 2012

A copy of that decision appears at Appendix A

A timely petition for rehearing was thereafter denied on the following

date: June 13, 2012 and a copy of the order denying rehearing appears at

Appendix A

LI An extension of time to file the petition for a writ of certiorari was

granted to and including

Application

(date) on

(date) in

No.

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

INVOKING THE COURT'S JURISDICTION

The U.S. Supreme Court has Jurisdiction to decide this case under 28 U. S.

C. § 1257(a), which authorities the Court to review by appeal "Final

Judgments".....rendered by the highest court of a State in which a decision could

be had.... where is drawn in Question the validity of a statute of any State on the

ground of its being repugnant to the Constitution

....

and the decision is in favor of

its validity. See Duquesne Light Co. v. Barasch, 109 S. Ct. 609 at 611 (1989). See

also 28 U. S. C. § 1651 (a) and Federal Rules of Civil Procedure, Rule 60 (b) (6)

and 60 (d) to vacate the orders and judgments of lower courts for fraud upon the

Court and where the Court being an interested party to the outcome of the

proceedings, should have recued and passed jurisdiction to another unbiased Court.

The trial court entered its order denying Petitioner's Motion to Dismiss the

indictment pursuant to Article 3 (a) of the Florida Statute Annotated Statute

§941.45, Interstate Agreement on Detainer Act, which has been presented and the

outcome of further proceedings is now preordained. The trial court's interpretation

and application of the aforementioned statute as adopted and upheld by the 5'

DCA's order, does not leave its effecting doubt. All state court proceedings are

completed for purposes of Certiorari. See Cox Broadcasting Corp. v. Cohn, 420

U.S. 469, 477, 95 S. Ct. 1029 (1975).

Further, the Florida Supreme Court denied discretionary review

as well

with rehearing. The Florida Supreme Court has denied/rejected the opportunity to

correct the error.

The Supreme Court has Subject-matter Jurisdiction over this instant appeal

for certiorari under 28 U. S. C. § 1257(a) whereas: The Constitutionality of Florida

Statute §941.45, Article 3(a) was "drawn into question" within the meaning of

§ 1257(a) where the trial court misconstrued the statute without exception, opinion

adopted by the 5' DCA and review was rejected by the State Supreme Court.

Whereas, the Statute was drawn into question in a manner directly bearing upon

the merits of the action. The decision upholding it constitutional validity involves

this Court's Appellate Jurisdiction. See Duquesne Light Co. v. Barasch, 109 S. Ct.

609 (1989); 28 U.S.C. §1257 (1982ed); 28 U.S.C. §1651(a); and Federal Rules of

Civil Procedure, Rule 60(b) & 60(d). This Court has Jurisdiction.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Florida Statute § 941.45

STATEMENT OF THE CASE

On May 13, 2008, Petitioner was charged via indictment with § 782;04(1)

(a) (1), Murder in the First Degree

Count 1; Burglary of a Dwelling w/ass.

Battery, § 810.02 (2), Count 2; Grand Theft of a motor vehicle § 811014(c) 6,

Count 3.

In June of 2008 Petitioner was sentenced to serve a sentence of 2 1/2 years

years in the Michigan Department of Corrections (MDOC). Sometime in July

2008, while being processed into MDOC, Petitioner was informed that due to

having a detainer from the State of Florida, his security level within prison would

be drastically increased

which would ultimately affect his ability to participant in

his court ordered rehabilitation programs. At no point was Petitioner informed of

his right under the Interstate Agreement on Detainers Act (IADA) Article 3 (a),

Request for Final Disposition.

A prison law clerk informed Petitioner that Article 3 (a) of the IADA could

be invoked in order to receive speedy deposition of the Detainer against him.

Petitioner immediately began writing prison officials to resolve the detainer. On

July 21, 2008 Petitioner sent a "Prison Kite" to MDOC prison officials stating;

According to Policy, 0. P. 03.0 1.120, the records office

supervisor shall insure that the appropriate law enforcement

agency is contacted to confirm status of a pending felony

charge. I am hereby requesting a "Request for Final

Disposition" to be sent. In addition, I would like to receive a

copy of that "Request for Final Disposition". Also, I would

like a proof of incarceration. Thank you for your time and

patience in regards to dealing with this matter." (App. Cl)

The MDOC officials replied stating;

"You can request final disposition by contacting the court or

law enforcement agency [signed] Records Office" App. C 1

After receiving response from MDOC, Petitioner sent a "Request for Final

Disposition" to the Orange County Clerk and the Orange County Sheriff's

Department

which were received on September 10, 2008. (App. E1-E2) The

Sheriff's Dept. responded by directing Petitioner to contact the Orange County

Clerk (App. Fl). The Orange County Clerk of Court responded stating "no case

was pending" against Petitioner (App. F2). Again on October 13, 2008, Petitioner

sent a letter to the Orange County Sheriff, asking why a detainer was placed

against him if there were no case pending against him, based on the Clerk of

Court's response. (App. () The Sheriffs Dept. then forwarded the letter to Judge

Marc Lubet, who forwarded the letter to the Office of the State's Attorney

who

received it October 30, 2008.

On March 6, 2009, Petitioner was arraigned and waived NO time periods.

On April 9, 2009 Petitioner filed a pro se Notice of Expiration pursuant to Fla. R.

Crim. P. 3.191 (p) 2 notifying the court that "as of March 9, 2009, the 180 day time

frame expired

speedy trial invoked under Article 3 (a) of the IADA- Which was

stricken due to having counsel (App H). On April 29, 2009, after Petitioner moved

to dismiss the charges, trial court determined that October 30, 2008's informal

letter of inquiry to the Sheriff

not the September 10, 2008 notice, which was in

compliance with statutory standard was

clock provided under IADA began to run

the effective date when the 180 day

meaning the expiration of the 180 days

was that day, April 29 2009. ,Trial Counsel filed a Notice of Expiration on that

day. Trial Court held a hearing the next day on the N.O.E. and trial began May 5,

2009

235 days after Petitioner's initial request for final disposition was received

and filed (24 days after Petitioner filed his pro se Notice of Expiration).

Trial Court adjudicated Petitioner guilty on all counts and sentenced him to

Life for Count 1; 25 years for Count 2

consecutive to Count 1; and 5 years

concurrent to Count 2 for Count 3.

Direct Appeal was to the 5' DCA and judgment was affirmed, per curiam on

July 5, 2012. Citation is at Tiszai v. State, 90 So. 3d 304. A timely § 2254

Petitioner for Writ of Habeas Corpus was filed and denied on merits

along with

denial of C.O.A. by the Middle District Court in Orlando, Fla. A subsequent

denial of a timely filed application for C.O.A. was issued by the 11' Circuit Court

of Appeals on June 6, 2018 as well as a Motion for Reconsideration on October 19,

2018.

The instant, Petitioner asserts that Florida Statute § 941.45 was

unconstitutional as applied and served to suspend the constitutional writ of habeas

corpus in regards to issues of lack of jurisdictional subject matter, fundamental

error and due process.

REASON FOR GRANTING THE WRIT

The State Court decided an important question of law in a way that expressly

and directly conflicts with decisions of the United States Supreme Court and the

United State Constitution.

Florida legislature enacted statute § 941.45, Interstate Agreement on

Detainer Act (IADA) in accordance with 18 U.S.C. App. § 2, which binds the state

to strict adherence of the statutory provisions. At time of Petitioner's invocation

and subsequent trial proceedings, Florida was an active participant of the IADA.

The United States is party to the IADA see 18 U.S.C. App. §2, at 682, and is

subject to the 180 day provisions in Article 3 (a). Article 3 (a) of the IADA

requires that a prisoner against whom a detainer has been lodged be brought to trial

within 180 days after officials in the charging state have received the prisoner's

request for final disposition of the outstanding charges.

Article 3 (b) states:

"The written notice and request for final disposition

referred to in paragraph (a) hereof shall be given or sent

by the prison Warden, Commissioner of Corrections, or

other official having custody of him, who shall promptly.

forward it together with the certificate to the appropriate

prosecuting official and court by registered or certified

mail, return receipt requested.

Further, Article 3 (c) entails;

"The Warden, Commissioner of Corrections, or other

officials having custody of the prisoner shall promptly

inform him of the source and contents of any detainer

lodged against him and shall also inform him of his right

to make a request for final disposition of the indictment

information or complaint on which the detainer is based."

As this Court precedent with its ruling in Carchman v. Nash, 473 U.S. 716,

719 (1985), "As 'a congressionally sanctioned interstate compact,' the IADA is a

federal law subject to federal construction: (emphasis added) and with this Court's

decisions construing the TAD, it has properly relied upon and emphasized the

purpose of the lAD in Cuyler v. Adams, 449 U.S. 433, 448-450, 101 S. Ct. 703,

711-12, 66 L. Ed. 2d 641 (1981); United States v. Mauro, 436 U.S. 340, 361-62, 98

S. Ct. 1834, 1848, 56 L. Ed. 2d 329 (1978); the questions asserted in this Petition

present issues that falls within the parameters of this Court's review due to the

District and Circuit Court's contrary "cookie cutter decisions" to that of this Court.

See Fex v. Michigan, 507 U.S. 43 (1993).

The questions presented stem from two (2) points; 1) Whether the Michigan

Department of Corrects (MIDOC) perpetrate an act of "government negligence"

when it blatantly and adamantly refused to assume the responsibilities pursuant to

Article 3 (b) & (c) of the IADA

excusing any technical defaults in Petitioner's

pro se attempts to invoke speedy trial under Article 3 (a) and if so 2) Trial Court

and State's Attorney prosecuted and sentenced Petitioner unlawfully through use

of a null and void indictment based off of a miscalculation of the 180 day clock.

Throughout the procedural history of this issue before State courts of Appeal

and both the Federal District and Circuit Court of Appeal one simple fact of this

case has remained unrefuted; the fact that MIDOC prison officials failed to properly

inform Petitioner of the detainer against him and the appropriate method to seek

speedy disposition, pursuant to Article 3 (b) & (c) of the IADA.

As documented in the attached Appendix with this brief and alluded to in the

aforementioned Statement of Facts, Petitioner learned of the JADA through a

prison law clerk and, NOT ONCE, but repeatedly, wrote his prison records office,

imploring them to invoke his right to a speedy disposition pursuant to Article 3 (a).

Though thwarted and misinformed, due diligence was exercised and Petitioner,

following statutory standards, ensured that a Notice for Request for Final

Disposition was served on the jurisdiction of where the detainer stemmed from

fact, did so in a manner as to specified parties by his prison records office. The

"Court & law Enforcement Agency" (App. Cl).

Whether governments or the prisoner have met the standards of the IADA is

a mixed question of law and fact such questions are reviewed de novo. See United

States v. McConney, 782 F. 2d 1195, 1202 (9th Circuit 1984); Johnson v. Stagner,

781. F. 2d 758, 761 (9th Cir. 1986) (applying de novo review to habeas appeal

regarding IADA rights).

Article IX of the Act states, "[t]his Agreement shall be liberally construed so

as to effectuate its purposes." Because of the severity of the remedy, a prisoner

must strictly comply with the formal notice requirements of the Act, Johnson v.

Stagner, 781 F. 2d 758, 761 (9th Cir. 1986), and the prisoner has the burden to

show that a request for speedy trial was made. United States v. Moline833 F. 2d

190, 192 (9th Circuit 1987). Nevertheless, in cases where the government had

failed to meet its obligation and the prisoner attempted, but through no fault of his

own failed to comply with the technical requirements of the Act, the IADA'S

remedial provisions still apply. United States v. Smith, 696 F. Supp. 1381, 1383

(D. Or. 1988); Nash v. Jeffes, 739 F. 2d 878 884 (3re Cir. 1984); rev, denied on

other grounds, Carchman v. Nash, 473 U.S. 716, 105 S. Ct. 3401, 87 L. Ed. 2d 516

(1985).

The clear purpose of the IADA was to promote the "expeditious and orderly

dispositions" of untried complaints against prisoners. § 18 U.S.C. App. Article 1.

The prisoner is responsible for making a request in writing for a speedy trial to the

prison official in charge of him. Id. Article 3 (b). Together with a certificate

stating the conditions of the prisoner's current imprisonment, the prison official is

then to forward that request "to the appropriate prosecuting official and court by

registered or certified mail, return receipt requested." This is the statutory

procedure by which the prisoner satisfies his obligation to "cause [] to be delivered

to the prosecuting officer "his request for a speedy trial." Id. Article 3 (a).

"[A] Prisoner's rights under the IADA should not be

subjected to intentional or negligent sabotage by

government officials.

To adopt the government's

position would allow prison officials to undermine

prisoner's speedy trial rights by neglecting to perform

their statutory duties." Taken from U.S. v. Smith, 696 F.

Sup. At 1384-85.

In United States v. Reed, 910 F. 2d 621 (9th Cir. 1990) and United States v.

ZFaty, 44 F. Supp. 2d 588 (5. D. N. Y. 1999), the defendants were not provided

with federally sanctioned speedy trial request forms and therefore, successfully

argued that it was the result of government negligence that they were unable to

comply with the IADA's procedural requirements for making a demand for speedy

trial.

Although the government notified Reed of the charge against him, it misled

him about how to file a proper speedy trial request. Petitioner's Appendix

provides this Court with more than enough evidence to prove that the expression

"similarities of cases" is an gross understatement in respect to the question

presented to this Court. As for ZFaty, the District Court for New York deemed a

over simplified correspondence o the Court stating, "I wish to be brought to trial on

these untried charges as soon as possible", more than sufficed to invoke the right to

speedy trial pursuant to Article 3 (a) of the IADA. Whereas, with Petitioner, he

utilized verbiage standard for the statute AND procured certified mail, return

receipt requested.

Taken from ZFaty; "administrative inertia does NOT license the government

to obscure the rights of prisoners without consequences" and further stated, "it is

entirely conceivable that in the future a court might have grounds to conclude that

the government's continued use of paperwork that on its face fails to properly

advise prisoners of how to give effect to their speedy trial requests is evidence of

lack of good faith that might give rise to estoppel."

In this case, contrary to the JADA's requirements, Petitioner was never

informed of his rights under the statute. MIDOC was required to, but DID NOT,

provide Petitioner with standardized forms promulgated by the MDOC that would

normally accompany DOC "Notice of Detainer" form. The printed forms would

have provided Petitioner with a simple procedure for initiating an IADA request by

signing the forms and/or checking box(es). As a result, considering his lack of

information, Petitioner can hardly be expected to have exactingly with the IADA's

procedural requirements.

While Petitioner concedes that his Sept. 10 2008 notice did not punctiliously

comply with the IADA's procedural requirements (by unknowingly failing to send

a copy to the State Attorney's Office as well as the Circuit Court Clerk) he argues

that he substantially complied with the IADA's central requirements, and as a

result, the IADA's remedial should apply. See U.S. v. Reed, 910 F. 2d 621, 624

(9th Cir. 1990).

Lastly, the Third Federal Circuit Court of Appeals' ruling in U.S. v. Dent,

149 F. 3d 180, concerning the IADA should further differentiate Petitioner's

meritorious claim from those of which fail to meet the standards of the IADA,

Article 3. In Casper v. Ryan, 822 F. 2d 1283 (3rd Cir. 1983) the court recognized

that "[s]trict compliance with Article 3 MAY NOT be required when the prisoner

has done everything possible, and it's the custodial state that is responsible for the

default. "The 31 Circuit went on to explain, however, "that an inmate seeking the

exception must 'show that she/he substantially complied to the extent possible."

Dent failed to include the critical information

Petitioner's "proof of incarceration",

which was included in

concerning the mandatory information

pertaining to his incarceration's status, though Petitioner did so. It is without

doubt that Petitioner filed a Notice for Request of Final Disposition to that extent

which the Agreement demands with the exception of a copy being sent directly to

the State Prosecutor although it went to

Circuit Court Clerk

and was filed with the Orange County

Per the instructions of prison record's office officials

(App.

Cl, C4, C5) which is undeniably within the prosecutor's jurisdiction.

The trial court relied on a Notice of Inquiry that in no way met the statutory

standards of Article. 3 of the IADA

no return receipt requested, certified mail; no

specific language expressing wishes to invoke Article 3 (a); was not sent to the

Circuit Court as all, was only inquiring as to how a detainer was placed against

him when the Clerk of Court showed "no case" pending. (App. F2)

However, Petitioner's initial request involved EVERY detail down to his

purchasing certified mail, return receipt requested services. The trial court agreed

with the state's position that it never directly received Petitioner's initial request

(App. EL) which was received and filed by the Clerk 50 days prior to the

insufficient "letter of inquiry" to the sheriff. The Agreement invoking "letter" to

the sheriff was NEVER sent to the prosecutor by Petitioner.

It's obvious that trial court and prosecutor held forfeit Petitioner's right to a

speedy trial pursuant to Article 3 of the IADA in exchange for an extra 50 days to

prosecute Petitioner on a indictment that under the remedial provision of the IADA

was null & void.

Aside from the District Court's moot argument of Petitioner's IADA

violation being incognizable it relied on a severely unstable argument

catted"

"copy

from the 51DCA's obvious ruling in Agreement with Assistant Attorney

General's incorrectly calculated his 180 day clock. This is a grievous error that has

caused an unlawful conviction and sentence to remain unremedied for over a

decade. Trial court denied Motion for Dismissal based off of an incorrect

calculation of Petitioner's 180 day clock for speedy trial invoked under Article 3

(a) of the IADA. As this Court decided in Fex v. Michigan, 507 U.S. 43 (1993), a

defendant's 180 day clock don't commence until he "Shall have caused delivery"

of his Notice for Request of final Disposition to the "appropriate prosecutor's

jurisdiction."

Petitioner, through an act of extreme due diligence

which required his

assuming the responsibilities of his warder/institution and preparing a request,

while ensuring that it was delivered certified mail/return receipt request (App. El)

furnished an adequate notice to the 9th Circuit Clerk of Court for Orange County,

Florida

which is without doubt, within the jurisdiction of the prosecuting officer.

Petitioner's notice was received and filed on September 10, 2008 (App. Dl).

Should Petitioner not prove an exception to the rule and exempt from the

provisions set for in Article 3 (a) & Article V (c)' of the IADA, then the ruling of

this Court in Fex would dictate that the 180 day clock began on September 10,

2008. Trial Court instead, ruled that an "informal" letter sent to the sheriff (App.

G) initiated the 180 day clock on October 30, 2008 50 days later.

This 180 day commencement was established and justified by the trial court

solely on the premise that Petitioner's initial request failed to include a copy sent

directly .to the State's Attorney. While the technical requirements

along with

precedented rulings of this Court, Circuit Courts of Appeal, Fed. District Courts as

well as lower tribunal state trial courts

would mandate, a copy should have been

served on the State Prosecutor as well as the Clerk of Court. However, Petitioner

was never properly informed of his rights under the Agreement nor properly

instructed on the mechanism of Article 3 (a)

only was he instructed to "Contact

the Court or L.E.A.".... that placed the detainer. (App. Cl)

Article V. (c) of the IAOA provides in relevant part: "[fjn the event that an action on the

indictment, information, or complaint on the basis of which a detainer has been lodged is not

brought to trial within the period provided in Article III.... Hereof, the appropriate court of the

jurisdiction where the indictment has been pending shall enter an order dismissing the same

w/prejudice.

There's no room for question concerning whether the "appropriate

prosecuting officers jurisdiction"

91 Circuit Court

received and filed

Petitioner's initial request for final disposition. It's without question that

Petitioner's Notice of Inquiry

informal letter to Sheriffs Dept.

failed to meet

the minimal standard of a request under Article 3 and was NEVER SENT directly

to the Prosecutor's Office, but made it there by way of Circuit Court Clerk. Lastly,

there's no question that the "error" on Petitioner's part was the result of MIDOC

committing a deliberate act of "government negligence" when it vehemently

refused to fulfill it's responsibilities and then further went to misinform the

Petitioner.

The ruling of this Court in Fex v. Michigan should, without a doubt, prove

applicable to this instant case and serve as the protector/insurer of the speedy trial

rights invoke by Petitioner under Article 3 (a) of the IADA.'

Utilizing the application of Williams v. Taylor, 529 U.S. 362 (2000), a

constitutional violation of Petitioner's right to a speedy trial under Article 3 (a) of

the IADA was an error based off of an unreasonable application of clearly

established Federal Law precedented by the U.S. Supreme Court ruling in Fex v.

Michigan, 507 U.S. 43, 44 (1993) and further proves contrary to determinations in

multiple District and Circuit Courts to that of identical facts in U.S. v. Reed, 910 F.

2d 621 (9th Cir. 1990); Casper v. Ryan, 822 F. 2d 1283 (3' Circuit 1983); U.S. v.

ZFaty, 44 F. Supp. 2d 588 (S.D.N.Y. 1999) while proving distinguishable from the

facts in the unfavorable ruling in U.S. v. Dent, 149 F. 3d 180 (1998).

The District Court for the Middle district of Florida misapplied decisions of

Sesmôre v. Ala., 846 F. 2d 1355, 1359 (lith Cir. 1988) and that of Davis v. United

States, 417 U.S. 333, 346 (1974) where both cases precedented issues concerning

Article IV's, anti-shuttling provisions, of the Agreement and a Defendant's failure

to show prejudice. The scope of Petitioner's claim is extremely narrow and falls

outside of the District Court's reply by a enormous margin: petitioner is presenting

the violation of his right to speedy disposition under Article 3, Request for Final

Disposition, which while is an extension of the IADA, has absolutely no relevance

to Article IV nor the scope of the Attorney General's argument.

Though there are courts holding that prejudice is presumed, Cody v. Morris,

623 F. 2d 101, 102-03 (9th Cir. 1980) taken from Brown v. Wolff, 706 F. 2d 902,

906 (9th Cir 1983), "dismissal for violation of timely trial provision granted without

examining whether defendant was prejudice by delay," through an abundance of

caution Petitioner can more than adequately isolate, identif,' and present to this

Court sufficient prejudice derived from a violation of his right to speedy trial

pursuant to Article 3 (a) of the JADA.

A criminal defendant's invocation of 18 U.S.C. App. §2, Article 3 (C) of the

IADA

F.S.A. §941.45

call forth a protection of due process and equal right to a

fundamentally fair trial and any such accords included, but not limited to, pre trial,

ki)

Guilt and sentencing fazes. A denial of such whether considered merely trivial in

the eyes of overzealous prosecuting attorneys

subject defendants to potentially

detrimental encroachment and denial of constitutional rights under the 5th, 6th and

4 Amendments of the United States Constitution.

Nowhere within the Agreement is there suggestions that a violation of a

defendant's 180 day right to a speedy trial may be excused should the Act be

invoked. In fact, there's a term that has been ruled on by this court in Alabama v.

Bozeman, cited as 121 S. Ct. 2079 taken from Anderson v. Jungkace, 329 U.S.

482, 67 S. Ct. 428, 91 L. Ed. 436 stating, "The Agreement's language militates

against an implicit exception, for it is absolute, as the word "shall" is ordinarily the

language of command." To paraphrase Article V (c). " .which a detainer has

...

been lodged is not brought to trial... .the jurisdiction where the indictment has been

pending "SHALL" enter an order dismissing the same with prejudice."

An indictment that's untried after the allotted 180 days becomes null and

void according to the remedial provisions of the Agreement, thereby revoking

subject matter jurisdiction. A trial, conviction and sentence based off of an

indictment lacking subject matter jurisdiction is unlawful by the United States

Constitution and a gross miscarriage of justice.

The present case before this Court is, without doubt, such a miscarriage of

justice where Petitioner was denied his right to due process, a fundamentally fair

911

trial and unlawfully convicted and sentenced on an indictment that lacked subject

matter jurisdiction.

If for no other reason other than to resolve conflict with the proper

application of Fex v. Michigan, when facts indistinguishable from that of

Petitioner's, it's clear that both District and Circuit Federal Courts, as well as State

Courts throughout the land, are indisputably practicing it's misapplication, this

petition for Writ of Certiorari meets the standards for review.

This Supreme Court does have jurisdictional authority to resolve issues of

fact in controversy and resolve conflicts of opinion between lower courts in order

to establish unity of laws among the States and Court.

The Petitioner has no other means, adequately enough, for relief. All

available remedies have been exhausted to no avail. No responsive pleadings were

required to develop an appealable record, no show cause order was entered and no

hearing was or has ever been held in order to produce reliable findings of facts and

conclusions of law.

The right(s) to the requested relief arises from an undisputable U.S.

constitutional right, a state constitutional right, the right to due process and equal

protection of the law and the right to access the Court to vindicate those rights.

When the State Supreme Court fails to resolve severe conflicting opinions in

the Court of Appeal, this Court should resolve to correct the differences and set the

uniform standards for the State.

CONCLUSION

The Petition for Writ of Certiorari should be granted.

Respectfully Submitted,

Date:

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.