Petition for Writ of Certiorari — Isaac Naranjo, Petitioner v. Mark Capozza, Superintendent, State Correctional Institution at Fayette, et al.

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IN THE-SUPREME C

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NO. 19-1561

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ISAAC NARANJO.

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Petitioner,

vs.

SUPERINTENDENT FAYETTE SCI, ET AL„

Respondents.

(E.D. PA.CIV.NO. 2-13-CV-07383)

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT OF PEENSYLVANIA

ISAAC NARANJO, DOC# FJ-4369

SCI-ROCKVIEW

P.O. BOX- A

BELLEFONTE, PA 16823

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QUESTIONS PRESENTED

(1) WHETHER TO MAKE A SUBSTANTIAL SHOWING OF THE DENIAL OF A

CONSTITUTIONAL RIGHT A HABEAS APPLICANT FOR A C.O.A. NEED NOT SHOW

THAT HE WILL PREVAIL ON THE MERITS. HE HAS ALREADY FAILED IN THE

ENDEAVOR, BUT MUST “DEMONSTRATE THAT THE ISSUES ARE DEBATABLE

AMONG JURISTS OF REASON; THAT A COURT COULD RESOLVE THE ISSUS [IN A

DIFFERENT MANNER]; OR THAT THE QUESTIONS ARE “ADEQUATE TO DESERVE

ENCOURAGEMENT TO PROCEED FURTHER”.

. (2) WHETFIER A STATE PRISONER UNDER MARTINEZ MAY OVERCOME A

PROCEDURALLY DEFAULTED CLAIM BY SHOWING CAUSE FOR THE DEFAULT

AND PREJUDICE.

(3) WHETHER UNDER STRICKLAND, COUNSEL HAS A DUTY TO MAKE

REASONABLE INVESTIGATIONS, OR MAKE A REASONABLE DECISION THAT

MAKES PARTICULAR INVESTIGATIONS UNNECESSARY!

(4) WHETHER UNDER MARTINEZ A STATE PRISONER MAY OVERCOME A

PROCEDURALLY DEFAULTED CLAIM BY SHOWING THAT POST-CONVICTION

COUNSEL WAS INEFFECTIVE IN FAILING TO RAISE THE INEFFECTIVEASSISTANCE OF TRIAL COUNSEL CLAIM IN THE FIRST-COLLATERAL REVIEW

PROCEEDING.

0.

(5) WHETHER THE RIGHT TO NOTICE OF A CHARGE IS BASIC AND THE MOST

CLEARLY ESTABLISHED DUE PROCESS RIGHT OF AN ACCUSED IN A CRIMINAL

PROCEEDING.

(6) WHETHER A PERSON CAN NOT BE CONVICTED OF AN OFFENSE NOT CHARGED

AGAINST HIM BY INDICTMENT OR INFORMATION AND DUE PROCESS OF LAW

REQUIRES NOTICE OF CHARGES.

(7) WHETHER THE RIGHT TO FORMAL NOTICE OF CHARGES TO AN ACCUSED AND

TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION AGAINST

HIM IT IS WELL ESTABLISHED.

PARTIES

The Petitioner is Isaac naranjo, a prisoner at SCI-Rockview. The Respondents are

Superintendent Fayette SCI, and the Attorney General of the State of Pennsylvania, et al. .

t

TABLE OF CONTENTS

Decisions Below...........................................................................

1

Jurisdiction.....................................................................................

A

Constitutional and Statutory Provision Involved,..,.................. • • •

to

Statement of the Case................................... ................................

Reasons for Granting the Writ.......................... ............................

A. Conflicts with Decisions of this Court and other Courts

B. Importance of the Questions presented.........................

C. To Encourage Granting the Writ...................................

Conclusion

INDEX TO APPENDENCIES

APPENDIX A.

APPENDIX B.

APPENDIX C.

APPENDIX D.

APPENDIX E.

APPENDIX F.

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TABLE OF AUTHORITIES CITED

Barefoot v. Estelle, 463 U.S. 880, 893 (1983).................................................................

n-Vi

Miller-El v. Cockrell, 537 U.S. 322, 338 (2003)............................•..............................

n-fi

Gardner v. Pogue, 558 F.2d 548 (9th Cir. 1977)................................................................

n

Flieger v. Delo, 15 F.3d 878, 883 (8th Cir. 1994)..............................................................

n

Fuller v. Johnson, 114 F.3d 491,495 (5th Cir. 1997)......................................................... \°[

Buxton v. Collins, 925 F.2d 816, 819 (5"’ Cir. 1991)........................................................

\<\

Buie v. McAdony, 322 F.3d 980 (7,h Cir. 2003).......................................................

Deck v. Missori, 544 U.S. 622, 629 (2005)......................................................................

n,io

United States v. Brantley, 342 Fed. Appx. 762, 767-770 (3d Cir. 2009).........................

bo

Martinez v. Ryan, 132 S.Ct. 1309,1315, 182 L.Ed.2d 272 (2012)...................................

\lbo~b\

Strickland v. Washington, 466 U.S. 668, 691 L.Ed.2d 674 (1984)..................................

n/io-zj

Blackburm v. Foltz, 828 F.2d 1177, 1187 (6th. Cir. 1987)................................................

b\

Massaro v. United States, 538 U.S. 500, 505, 123 S.Ct. 1690, 155 L.Ed.2d 1714 (2003)

b\

Re Gault, 387 U.S. 1, 33-34, 87 S.Ct. 1428, 1446-1447 (1967)...................... •..............

Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948)................ ...............

Gray v. Raines, 662 F.2d 569 (9"1 Cir. 1981)..... ..............................................................

Watson v. Jago, 558 F.2d 330 (6th Cir. 1977)..................................................................

n

Re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682 (1948)...........................

‘2J bH

Pemberthy v. Beyer, 19 F.3d 857, 864 (3d Cir.)................................................. .............

Purkett v. Elem, 131 L.Ed.2d 834,115 S.Ct. 1769,1771 (1995)....................................

Sumner v. Mata, 455 U.S. 591, 598, 71 L.Ed.2d 480,102 S.Ct. 1303 (1982).................

Ca

n

Marshall v. Lonberger, 459 U.S. 422, 432, 74 L.Ed.2d 646, 103 S.Ct. 84j (198j)

H

Hubbard v. Jeffes, 653 F.2d 99,102 (3d Cir. 1981)..............................................

H

Richmond v. Rickell, 779 F.2d 957 (9th. Cir. 1985)................................................

23 - 3S

United States v. Cotton, 535 U.S. 625, 152 L.Ed.2d 860, 1225 S.Ct. 1781 (2002).

'12

Custisv. U.S.,511 U.S. 485 (1994)

Neifeld v. Steinberg, 438 F.2d 423 (3d Cir. 1971)....................................

22

IVll

Albrecht v. United States, 273 U.S. 1,71 L.Ed. 505,47 S.Ct. 250 (1927)

Com. v. Jones, 929 A.2d 205, 209 (Pa. 2007).

21

Jones v. Wood, 114 F.3d 1002 (9th Cir. 1997)

^2

Vicks v. Bunnell, 875 F.2d 258 (9,h Cir. 1989)

\ (o

Lincion v. Sunn, 807 F.2d 805 (9th Cir. 1987)

Meyer v. Gills, 93 F.3d 1147 (3d Cir. 1996)

Kb

Statutes

28U.S.C. Section 1251(1)

q

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

q

28 U.S.C. Section 2254

28 U.S.C. Section 2253

Rules

Fed. R. 6.G.S. 2254

n,n-2-s

Slate R.C.P. 544(A)

ZH

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.

i

DECISIONS BELOW

The Decision of the United States Court of appeals for the ThirdCircuit is unpublished and a

copy is attached as Appendix A to this petition.

The Order of he United States Court of appeals for the Third Circuit denying rehearing is

unpublished and a copy is attached as Appendix B to this petition.

The Decision of the United States District Court is unpublished and a copy is attached as

Appendix C to this petition.

The Opinions of the highest State Court to review the merits appears at appendix D and E

reported at commonwealth v. Naranjo, 889 A.2d 116 (Fa. Super. 2005) and Commonwealth v. Naranjo,

81 A.3d 1002 (Pa. Super. 2013).

The Opinion of the PCRA Court is unpublished and a copy is attached as appendix F.

JURISDICTION

The date on which the United States Court of appeals ruled on my application for a C.O.A. was

august 20, 2019 and a copy is attached as Appendix A. A timely petition for rehearing was denied by

the United States Court of Appeals on the following date; October 1, 2019 and a copy is attached as

Appendix B t. The Jurisdiction of this Court is invoked under 28 U.S.C. Section 1251(1).

The date on which the highest State Court decided my case was October 19, 2005 and May 23,

'2013 and copies of those decisions are attached as Appendix D and E. The Jurisdictiopn of this Court is

invoked under 28 U.S.C. section 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves Amendment XIV to the United States Constitution, which provides.

Section 1. all persons bom 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 priviliges 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.

1&

STATEMENT OF THE CASE

The petitioner’s federal habeas petition primarily alleged that on March 5, 2003, a jury

selection commenced regarding to his supposed crimes, and before the jury panel or he was

brought into the courtroom. Petitioner trial attorney David Santee was pressuring him into the

pleading guilty on the cell to the back to the courtroom. Mr. Santee then informed the court that

the petitioner wanted him removed and a new attorney appointed. The court denied that request.

Petitioner was then brought into the courtroom for the first time and sought and was permitted to

address the court directly. He asked again to have assistant defender Santee replaced.

\

Complaining both that he had only met him recently and that counsel was attempted to pressure

him into pleading guilty. Petitioner also complain that Mr. Santee was refusing to provide him

with discovery material. The court then instructed defense counsel Mr. Santee not to provide Mr.

Naranjo with discovery and falsely indicated that the interpreter relayed to him that petitioner

which is a Afrolatin American and a non-speaking english said you fucking Nigger, and order

the Sheriffs to gag and use shackles on petitioner.

Petitioner direct appeal, which described this unprofessional conduct by the trial court

was denied by the Superior Court, the disctrict court rejected this claim the first claim in

petitioner federal habeas petition indicating that the Superior Court’s decision in review of the

trial court unprofessional conduct did not deprived petitoner of a fair trial and was not ‘'contrary

to” the “clearly established” federal law, as determined by this court.

The Court of Appeals denied a timely application for a Certificate of Appealability

indicating that petitioner tailed to make a substantial showing of the denial or a constitutional

right with respect to this due process violation also a timely petition for a rehearing.

.

Further, the petitioner’s federal habeas petitionalleged that he was deprived of adequate

assistance of post-conviction counsel when the PCRA counsel Elayne C. Bryn abandoned a

claim that trial counsel was ineffective for (a) not interviewing petitioner prior to trial, (b) not

investigating or discussing defense options, (c) not preparing for trial, and (d) being

inexperienced, without address the claim in a Finley-letter as required by state law.

Petitioner raised in his motion in opposition to PCRA counsel Finley-letter and motion to

withdraw as counsel, PCRA counsel ineffectiveness in abandoning the claim and the PCRA

court did not grant PCRA counsel Elayne C. Bryn permission to withdraw as counsel until

several months later after that dismissed petitioner’s PCRA petition without address petitioner

PCRA counsel ineffectiveness claim and without review"the record as required by state law

before dismissal a PCRA petition. It also alleged that he was impeded by the state court to

comply with the state procedural rule the district court rejected this habeas claim based on the

Magistrate Judge incorrect conclusion that PCRA counsel addressed said claim in a Finley-letter,

ignoring petitioner’s objections to the Magistrate Judge R.R. where he proved that the Magistrate Judge was incorrect. However the District Court endorsed the fact that PCRA counsel did not

address the claim in a Finleyrletter, and that the state court impeded petitioner to comply with the

state procedural rule.

The Court of Appeals denied a timely application for a certificate of appealability

indicating that this claim is inexucusably procedural^ defaulted consequently a petition for a

rehearing . Further the petitioner’s federal habeas petition alleged that during petitioner

testimony at trial, he presented his own alilbi evidence that at the time alleged crime he was not

in Philadelphia, but in Lancaster, Pennsylvaia staying with a friend Alberto Cruz Sanchez. He

further testified his attorney has medical records from a Lancaster Hospital proving he was there

IT

prior to trial. Petitioner Isaac Naranjo gave defense counsel alibi witness Alberto Cruz s phone

number, the district attorney also questioned Mr. Naranjo about alibi witness, Alberto Cruz

wanted to testify as a alibi witness placing petitioner at the relevant time in Lancaster,

Pennsylvania. Defense counsel Mr. Santee did not make any type of adequate investigation or

attempt to locate petitioner’s alibi witness Alberto Cruz, and failed to file a timely notice of alibi.

Then after all witnesses testified, stated falsely, that Attomy Andrew Gay, an attorney

who was not petitioner’s attorney, and was not he, (David Santee), attempted to locate alibi

witness Alberto Cruz, but because the phone number this supposed attorney Gay could not

contact Alberto Cruz.

Petitioner raised these claim in his PCRA petition. On the PCRA petition, petitioner

attached an affidavit from Alberto Cruz, two letters from Douglas P. Earl (petitioner’s direct

appeal counsel), several copies of medical records from a Lancaster, PA hospital, including

medical records from the Philadelphia County Jails. Elayne C. Bryn PCRA counsel was

appointed to represent, petitioner in his PCRA proceedings. Almost three years after her

appointment, counsel Bryn filed a turned Finley “no-merit” letter claiming that she reviewed the

record and could not find any issues of arguable merit. She explained that she wrote to Mr.

Alberto Cruz and other witness at last known address and that the witnesses could not be found.

Furthermore, that petitioner did not provide any affidavit to support their alibi testimony.

Petitioner then appealed to the Superior Court, attached to his brief was Alberto Cruz’s affidavit,

including the above indicated documented evidence of alibi.

Specifically, the Superior Court rejected these claims based in that PCRA counsel falsely

indicated in a Finley-no-merit letter that she wrote to Mr.'Cruz and other witness at their last

addresses and neither of them could not be found and that petitioner did not provide any affidavit

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to support their potential alibi testimony. Petitioner also in his federal habeas petition alleged that

at all time when he asked PCRA counsel Elayne C. Bryn to contact Mr. Cruz and Mr. Jose

Rodriguez both these men were incarcerated in state prison.

Pettitioner appeal to the Superior Court, which described the trial counsel failure to make

any type of adequate investigation or attempt to locate petitioner alibi witnesses including

Alberto Cruz, was denied by the Pennsylvania Superior Court intentionally, without providing

the petitioner with a opportunity to rebut the PCRA counsel false contention there never was a

hearing which could have determined whether or not what the PCRA counsel said was truth.

Pursuant to the Third Circuit rule petitioner filed objections to the Magistrate Judge R.R. where

he proved that the Magistrate Judge conclusion was incorrect, and was

OtwA S

'VlvCT'CCCrA

However, the district court endorsed an unreasonable application of law and unreasonably

determined facts.

The Court of Appeals denied a timely application for an certificate of appealability

indicating: Appellant failed to make a substantial showing of the denial of a constitutional right

with respect to his ineffective assistance of counsel claims.

Further, the petitioner’s habeas petition alleged that he received ineffective assitanace of

post-conviction counsel in the initial-reyiew collateral proceeding when PCRA counsel failed to

raise a claim that the trial judge’s jury instructions on aggravated assault, attempted murder, and

recklessly endangering another person denied him due process. It further alleged that he was

impeded to comply with the state’s procedural rule when the PCRA court even failed to review

the record and the Superior Court intentionally did not remanded the case to the PCRA court.

The District Court rejected this habeas claim five, based in the Magistrate Judge incorrect

conclusion that petitioner pursuant to a state procedural rule waived the claim ignoring the fact

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that the petitioner proved in his objection to the magistrate Judge R.R. that PCRA counsel was

who was required to uncover and present the claim before the PCRA court and that the state

court impeded petitioner to comply with the state procedural rule.

The Court of Appeals denied a timely application for a certificate of appealability

indicating that this claim is inexcusably procedurally defaulted. Consequently a petition for a

rehearing. Further, the petitioner’s federal habeas petition alleged that he was charged in two

criminal complaints with identical charges by Philadelphia local state police officials, burglary,

simple assault, PIC, stalking, criminal trespassing, contempt of court, REAP, and threats. It

further alleged that in a subsequent and improper criminal complaint he was charged with

burglary and apparently aggravated assault et. al. And that nor the initial and third criminal.

complaint did not charge nor aver the offense of attempted murder. Also alleged that in a

preliminary hearing case MC: 0111-5522 in which the Commonwealth claim occurred, the

alleged incident was dismissed for lack of evidence, and that the presiding judge illegally held

him for trial on charges of aggravated assault, (REAP) (PIC) and criminal trespassing. This is

because he was not formally charged with aggravated assault in the initial complaint and

pursuant to the state rule of criminal procedure the Commonwealth failed to reinstate the

dismissed charges as required by Pa.R.Crim.P. 544(a) after dismissal.

Petitioner alleged that he never said preliminary hearing was held for trial on attempted

murder and that the Commonwealth unlawfully and without adequate notice amended the

criminal information. He also allaged that the trial court added the attempted murder charge to

the information and that did not have jurisdiction to try him on attempted murder and aggravated

assault.

Petitioner raised these claims on collateral appeal to the Superior Court. The Superior

Court primarily rejected petitioner attempted murder claims indicating that the attempted murder

was not added to petitioner's criminal information. Instead, the attempted murder charge was

added at petitioner's preliminary hearing, despite of the petitioner present to the court clear and

convincing evidence which clearly show that that never occurred.

Secondly, the Superior Court rejected petitioner claim that case MC: 011 1-5522 in which

the Commonwealth claim occurred.. The alleged incident was dismissed for lack of evidence in a

preliminary hearing, and the Commonwealth failed to reinstate the charges, and that such failure

deprived the trial court of jurisdiction to try him on aggravated assault as duplicative of issue.

The District Court did not conduct an independently examine of the state court record of

petitioner’s preliminary hearing notes of testimony of those proceeding to ascertain whether the

presumption of correctness should have attached to the state court’s factual finding as required

by federal law. See, Jones v. Wood, 114 F.3d 1002 (9th Cir. 1997); Richmond v. Rickett, 774

F.2d 957 (9"’ Cir. 1985); Vicks v. Bunnell, 875 F.2d 258 (9th. Cir. 1989); Lincion v. Sunn, 807

F.2d 805 (9"’ Cir. 1987); Meyers v. Gills, 93 F.3d 1147 (3d Cir. 1996); and ignored petitioner

repeatedly discovery request pursuant to Rule 6.G.S. 2254 and 3355. Instead, rejected these

Claims for the same false conention stated by the Superior court.

The Court of Appeals denied a timely application for a certificate of appealability

indicating that these claims are not cognizable under 28 U.S.C. Section 2254 and a petition for a

rehearing.

REASONS FOR GRANTING

THE

WRIT

A. CONFLICTS WITH DECISIONS OF THIS COURT AND OTHER COURTS.

the united states court of appeals for the third circuit of Pennsylvania

denial of a COA in the instant matter indicating that the petitioner

failed

to make a substantial showing of the denial of a constitutional right,

and

that some of the petitioner federal habeas claims are aither not

cognizable under 28 u.s.c. section 2254 or are inexcusably procedurally

defaulted is directly contrary to this court holding in Barefoot v. estelle,

463 u.s. 880,893 (1983);miller-EL v. cockrell, 537 u.s. 322, 338 (2003);

Deck v. missori, 544 u.s. 622, 629 (2005);stricklad v. Washington, 466

u.s. 668, 687-89 (1984);martinez v. Ryan,132 s.ct.1309,1315,182 I.Ed.2d

272 (2012).

B.IMPORTANCE OF THE QUESTION PRESENTED

this case primarily presents a fundamental question of the

interpretation of this court's announced standar in Barefoot v. Estelle,

463 u.s. 880,103 s.ct.3383,77 L.Ed.2d 1090 (1983). the question

presented is of great public importance Because concern private and

public parties in all 50 states, including thousand of pro se prisoners

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litigant throught the prison system which believe in the u.s. constitution

and laws established by the supreme court of the land, and affects

their

ability to receive fair decisions in proceedings that may result in months

or years.

(a)tJHE ISSUE'S IMPORTANCE IS ENHANCED BY THE FACT THAT THE

COURT OF APPEALS IN THIS CASE HAVE PRIMARILY AND SERIOUSLY

MISINTERPRETED THIS COURT'S ANNOUNCED STANDARD IN Barefoot.

this court held in Barefoot that in order to a habeas COA applicant

obtain a COA must make a "substantial showing of the denial of a

constitutional right" 28 u.s.c. section 2253 (c)(2). to make a substantial

showing." obviously the petitioner need not show that he should

prevail on the merits.He has already failed in that endeavor"Barefoot v:

Estelle,463 u.s.880,893,77 L.Ed.2d 1090 (1983).Rather,the petitioner

need only show that the petition contains an issue (1) that is

"debatable among jurists of reason"(2) that a court could resolve in a

different manner"(3) That is adequate to deserve encouragement to

proceed further,"(M) that is not"squarely foreclosed by statute,rule, or

authoritative court decision, or {that is not} lacking any factual basis in

the record" Id. at 893 n.4 and 894 (internal quotations and citations

omitted), see also.Gardener v. pogue,558 f.2d 548 (9th cir. 1977);flieger

v. Delo, 16 f.3d 878,883 (8th cir.1994).

this standard does not require the petitioner to show that he is

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entitled to relief.

we do not require petitioner to prove... that some jurists would grant

the petition for habeas corpus, indeed, a claim can be debatable even

though every jurist of reason might agree, after the COA has been

granteed and the case has received full consideration,

miller-EI v. cockrell, 537 u.s. 322, 338 (2003).

therefore, doubts as to whether to issue a COA should be resolved in

favor of the appellant,fuller v. johnson,114 f.3d 491, 495 (5th cir.

1997);see Buxton v. collins, 925 f.2d 816, 819 (5th cir.l991);Bui v.

mcadony,322 f.3d 980 (7th cir.2003).

thus the court of appeals seriously misinterpreted Barefoot by

failing to adhere this court well established and announced stanard in.

the court should reverse the erronous judgment of the court of appeals

and remand for further and appropriate proceeding.vacate the illegal

conviction and discharge petitioner, or remand for a new trial.

C.to encourage Granting the writ petitioner provides the following:

the court of appeals in reaching their conclusion misinterpreted

seriously the holding of the courts below:

i c\

(b) 2. The decision of the court of appeals indicating that the petitioner's failed to make a

substantial showing of the denial of a constitutional right with respect to his federal habeas claim

one due process claim is directly contrary to the holding of this court. See Deck v. Missouri, 544

U.S. 622, 629 (2005). In Deck, this court held that trial courts must have particular reasons to

justify their use of restraint in order to satisfy due process and have suggested that before such

restraints are implemented, there should be a hearing where the courts should consider

alternatives and scrupulous findings of fact and conclusions of law, specific to the case, before

finding restraints are necessary. See e.g.. United States v. Brantley, j42 Fed. Appx. 762, 767-770

(3rcl Cir. 2009).

(c) 3. The decision of the court of appeals indicating that petitioner's federal habeas claim three

is inexcusably procedurally defaulted is directly contrary to the holding of this court. See,

Martinez v. Ryan, 132 S. Ct. 1309, 1315, 182 L.ed. 272 (2012).

(d) 4. The decision of the court of appeals indicating that petitioner's failed to make a substantial

showing of the denial of a constitutional right with respect to his federal habeas claim four

ineffective assistance of counsel claim is directly contrary to the holding of this court, See

Strickland v. Washington, 466 U.S. 668, 687-89 (1984), to prevail on his challenge to his

conviction based on the claim of ineffective assistance of counsel. Strickland only required that

petitioner demonstrate that his Attorney’s representation was constitutionally deficient and that

but for counsel's ineffective assistance there is a reasonable probability that the result of the trial

would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052,

801 L.Ed. 2D 674 (1984). a petitioner can meet this standard by showing that counsel failed to

W ft

conduct adequate pretrial investigation. See, Grooms v. Solem, 923 F.2d 8-8, 90 (8,h Cir. 1991)

held that once a defendant identifies potential alibi witnesses, it is unreasonable not to make

some effort to contact them. Strickland v. Washington, 466 U.S. at 688; Tosh v. Lockhart, 897

F.2d 412. 413 (8th Cir. 1989); Blackburn v. Foltz, 828 F.2d 1177, 1187 (6th Cir. 1987). Or file a

timely notice of alibi. In addition, this court held that direct appeals without evidentiary hearing

may not be as effective as other proceedings for developing the factual basis of a claim. Massaro

v. United States, 538 U.S. %00, 505, 123 S.ct. 1690, 155 L.Ed.2d 714 (2003).

(e.y-S. The decision of the court od appeals indicating that the petitioner’s claim five is

inexcusably procedural^ defaulted is directly contrary to the holding of this court. See, Martinez

v. Ryan, 132 s.Ct. 1309, 1315, 182 L.Ed.2d 272 (2012).

(f) 5. The decision of the courts of appeals indicating that petitioner’s federal habeas claim seven

is not cognizable is directly contrary to 28 U.S.C. Section 2254 and violates this court s well

established due process right of an accused to receive fair notice of charge in a criminal

proceeding under the 6"', 14th, and 15"’ Amendments to the United States Constitution. See, Re

Gault, 387 U.S. 1. 33-34, 87 S.ct. 1428, 1446-1447 (1967); Cole v. Arkansas, 333 U.S. 196, 68

S.Ct. 514, 92 L.Ed. 644 (1948); Re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed 682

(1948). The riaht to notice of a charge is basic and the most clearly established due process right

of an accused in a criminal proceeding and must be given sufficiently in advance of schedule

court proceedings so that reasonable opportunity to prepare will be afforded...” Due process of

law requires notice which would be constitutionally adequate in a criminal proceeding. Re Gault,

387 U.S. 1. 33-34, 87 S.ct. 1428, 1446-1447 (1967); Gray v. Raines, 662 F.2d 569 (9"’ Cir.

1981); Watson v. Jago, 558 F.2d 330 (6"' Cir. 1977).

In his federal habeas petition the petitioner alleged that he presented this claim to and

rejected by the PA Superior Court, specifically because according to said court the charge of

attempted murder was added at the preliminary hearing, not with an amendment to the

information despite of petitioner present clear and convincing evidence to that court which

clearly show that that never occurred.

Under 28 U.S.C. Section 2254 (d)(8) the state court’s factual determinations generally

“must be ‘presumed to be correct” unless [they are] not ‘fairly supported by the record .

Pemberthy v. Beyer, 19 F.3d 857, 864 (3d. Cir.) quoting 28 U.S.C. Sect. 2254 (d)(8) cert, denied,

130 L.Ed.2d 350,115 S.Ct. 439 (1994); See also, Purkett v. Elem, 131 L.Ed.2d 834,115 S. Ct.

1769, 1771 (1995) (“in habeas proceddings in federal courts, the factual findings of state courts

are presumed to be correct and may be set aside, absent procedural error, only if they are ‘not

fairly supported by the record”’.) (quoting 28 U.S.C. Section 2254 (d)(8), the statute “requires

the federal courts to show a high measure of deference to the fact findings made by the state

courts.’’-Sumner v. Mata, 455 U.S. 591, 598, 71 L.Ed.2d 480, 102 S.Ct. 1303 (1982). Thus, the

question in a federal habeas proceeding is not whether the federal courts agree with the state

court’s factual finding, but whether that finding is fairly supported by the record, e.g., Marshallv.

Lonberger, 459 U.S. 422, 432, 74 L.Ed.2d 646, 103 S.Ct. 843 (1983). If the state court’s find is

fairiy supported by the record, then the petitioner must “establish by convincing evidence that

the factual determination by the state court was erroneous”. 28 U.S.C. Sec. 2254 (d); Hubbard v.

Jeffes, 653 F.2d 99,102 (ed Cir. 1981).

T1

The Magistrate Judge did not adhere to the command of 28 U.S.C. Section 2254 (d)(8),

and the District Judge endorsed an unreasonable application of law and unreasonably determined

facts. When also ignored Petitioner’s request in the alternative tor discovery, and/or an

evidentiary hearing pursuant to Rule 6.G.S. 2254 and 2255. In addition the record in a habeas

corpus proceeding must show that the district court examined all relevant parts of the state

record. Richmond v. Rickett, 774 F.2d 957 (9,h Cir. 1985).

(g) 6. The decision of the court of appeals indicating that petitioner’s federal habeas claim eight

is not cognizable is directly contray to 28 U.S.C. Section 2254 and violates this court well

established due process right of an accused to receive fair notice of a charge in a criminal

proceeding under the 6"1, 14"’ and 15th Amendments to the United States Constitution. See, Re

Gault, 387 U.S. 1. 33-34, 87 S.ct. 1428, 1446-1447 (1967); Cole v. Arkansas, 333 U.S. 196, 68

S.Ct. 514, 92 L.Ed. 644 (1948); Re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed 682

(1948).

A conviction of a defendant of a crime not charged in an criminal information require a

reversal of that conviction. Gray v. Raines, 662 F.2d 569 (9"' Cir. 1981). In addition, a court is

V

without jurisdiction to try a defendant in an offense not charged in an criminal information.

United States v. Cotton, 535 U.S. 625, 152 L.Ed.2d 860, 1225 S.ct. 11781 (2002); Custis v.

United Sates, 511 U.S. 485 (1994); Neifeld v. Steinberg, 438 F.2d 423 (3d. Cir. 1971); Albrech

v. United States, 273 U.S. 1, 71 L.ed. 505, 47 S.Ct. 250 (1927).

For the same above-stated reason in (e) 5. the Superior Court rejected this claim, because

according to said court the attempted Murder was not added to the petitioner’s criminal

information. Instead, the attempted murder charge was added at petitioner’s preliminary hearing,

11

as stated above, the petitioner presented to the court, clear and convincing evidence that he was

not charged nor held for court on attempted murder. The Magistrate Judge did not adhere to the

command of 28 U.S.C. Section 2254 (d)(8) and the district judge endorsed an unreasonable

application of law and unreasonably determined facts, when also ignored petitioner’s request in

the alternative for discovery and/or an evidentiary hearing pursuant to Rule 6.G.S. 2254 and

2255. In addition, the record in a habeas corpus proceeding must show that the district court

examined all relevant parts of the state record. Richmond v. Rickett, 774 F.2d 957 (9th Cir. 1985).

(j) 7. The decision of the court of appeals indicating that the petitioner’s federal habeas claim

nine is not cognizable is directly contrary to 28 U.S.C. Section 2254 and violates this court s

well established due process right of an accused to receive fair notice of charges and to be

informed of the nature and the cause of the accusation. See, Re Gault, 387 U.S. 1. 33-34, 87 S:ct.

1428, 1446-1447 (1967); Cole v. Arkansas, 333.U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948); Re

Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed 682 (1948); Neifeld v. Steinberg, 438 F.2d

423 (3d. Cir. 1971); Albrecht v. United States, 273 U.S. 1,71 L.Ed. 505, 47 S.Ct. 250 (1927).

In his federal habeas petition the petitioner alleged that the commonwealth unlawfully

brought him to trial, after that case Number MC: 011 1-5522 in which the commonwealth claim

occurred, the alleged incident was dismissed at a preliminary hearing for lack of evidence and

the commonwealth failed to reinstate primarily the trespassing charge pursuant to Pa.R.C.P.

544(a), and that the commonwealth fails to do so deprived the trial court of Jurisdiction because

the criminal information was improperly filed, the commonwealth was required to seeks to

reinstate primarily the trespassing charge by re-filing a second complaint under Pa.R.C.P. 544

(a). See, Com. V Jones, 929 A.2d 205, 209 (pa. 2007), which contain constitutional’s provision,

the commonwealth action violated the 6th, 14th and 5th Amendment to the United States

Constitution. Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948); Re Oliver, j33

U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed 682 (1948); Re Gault, 387 U.S. 1. 33-34, 87 S.ct.

1428, 1446-1447 (1967); Neifeld v. Steinberg, 438 F.2d 423 (3d. Cir. 1971); Albrecht v. United

States, 273 U.S. 1, 71 L.Ed. 505, 47 S.Ct. 250 (1927).

The Magistrate Judge failed to adhere to the command of 28 U.S.C. Section 2254 (d)(8)

and was required to examine the state court record of petitioner's preliminary hearing notes of

testimony of those proceedings to accertain whether the presumption of correctness should have

attached to the state court’s factual determination. Richmond v. Rickett, 774 F.2d 957 (9th Cir.

1985). Because the state court factual determination are “not fairly supported by the record” and

the district judge endorsed an unreasonable application of law and unreasonably determined

facts. When also ignored petitioner’s request in the alternative for discovery and/or an

evidentiary hearing, pursuant to Rule 6 of Rules Governing Section 2254 and 2255?

CONCLUSION

For the foregoing reasons, Certiorari should be granted in this case.

Respectfully Submitted,

ISAAC NARANJO, DOC# FJ-4369

SCI-ROCKVIEW

P.O. BOX- A

BELLEFONTE, PA 16823