Petition for Writ of Certiorari — Benjamin Dennerlein, Petitioner v. Mark Garman, Superintendent, State Correctional Institution at Rockview, et al.

Supreme Court briefMar 17, 2020

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ORIGINAL

NO.

-8140

Supreme Court, U.S.

FILED

MAR 1 7 2020

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

Benjamin Dennerlein,

Petitioner

Superintendent, State Correctional Institution at

Rockview, Et. A1 • >

Respondent

PETITION FOR WRIT OF CERTIORARI

Petition for Writ of Certiorari from the Order of the

United States Court of Appeals for the Third Circuit, at

docket number 19-2241 affirming the decision of the

United States District Court of the Western District of

Pennsylvania at Docket Number 2:16-cv-00780-MPK

denying a Petition for Writ of Habeas Corpus pursuant to

28 U.S.C. § 2254.

Benjamin Dennerlein, JT1142

Pro Se, Petitioner

State Correctional Institution at Rockview

1 Rockview Place/Box A

Bellefonte, PA 16823-0820

TABLE OF CONTENTS

TABLE OF AUTHORITIES...........................

••

•••

111

QUESTIONS PRESENTED FOR REVIEW

PARTIES............................................................

CONCISE STATEMENT OF THE CASE....

TABLE OF CONTENTS.........................

REFERENCE TO THE OPINIONS DELIVERED IN

COURTS BELOW.........................................................................

THE

CONCISE STATEMENT OF JURISDICTION.....................

REASONS RELIED UPON FOR WRIT OF CERTIORARI

Ground I. Does Strickland v. Washington, 466 U.S. 668 (1984)

prejudice threshold condone the actions of Counsel, Thomas Kurt

Fuchel, Sr., Esq. when Counsel assaults his client pre-trial, covered up

said assault defrauding the Trial Court, thereby creating an extremely

hostile environment in which Counsel is incapable of operating within

the fundamental fairness of the proceeding where the P.C.R.A. Court

acquiesces to Counsel’s failure to investigate along with the lack of

presentation of valid impeachment evidence?

Ground II. Does the prejudice under Strickland as demonstrated

within Ground I show that the United States Court of Appeals failed

to adequately apply said standard to the initial grounds challenging

the validity/veracity of the Court failing to rule on in-court ineffective

assistance of counsel claims brought by Mr. Dennerlein regarding the

authorized access to the alleged victim’s bank account during a five

(5) month period, prior to the murder, undermining the fundamental

fairness of the entire trial proceeding along with Counsel failing to

object to two (2) of the prosecution’s witnesses testimony regarding

prior incarcerations of Mr. Dennerlein?

CONCLUSION..........................................

CERTIFICATE OF COMPLIANCE.....

CERTIFICATE OF SERVICE...............

UNSWORN DECLARATION.................

TABLE OF AUTHORITIES

United States Supreme Court Cases

Harrington v. Richter, 562 U.S. 86 (2011)..........................

Houston v. Lack, 108 S.Ct. 2379 (1988)..............................

Illinois v. Allen, 397 U.S. 337 (1970).............................—~

Maryland v. Kulbicki, 136 S. Ct. 2, 3, (2015) (per curiam)

12, 20

Federal Cases

Broadnax, v. Dunn, 2019 U.S. Dist. LEXIS 214851 (2019) -11, 12, 17, 21

Brown v. Jones, 255 F,3d 1273, 1278 (11th Cir, 2001).......................... 12

Johnson v. Alabama, 256 F.3d 1156, 1177 (11th Cir, 2001).................. 12

Lambert v. Blackwell, 387 F.3d 210, 247 (3rd Cir. 2004)........................ 23

Stewart v. Secretary, Department of Corrections, 476 F.3d 1193, 1209

(11th Cir. 2007)........................................................................................ 12

United States v. Goldberg, 67 F.3d 1092, 1100, 1102 (3d Cir. 1995)-—16

United States v. Leggett, 162 F.3d 237, 250 (3d Cir, 1998)15, 16, 17

United States v. McLeod, 53 F.3d 322, 325 (11th Cir. 1995)

..... 15, 16

Van Povck v. Florida Department of Corrections, 290 F,3d 1318, 1322

(11th Cir. 2002)

Wilkerson v. Burge, 2005 U.S. Dist. LEXIS 14679 (2nd Cir, July 20,

2005)

15, 17

State Cases

Commonwealth v. Jones, 700 A.2d 423 (1997)

Federal Constitutional Provisions

Amendment 4, (U.S. Const.)

Amendment 6, (U.S. Const.)

Article III § 2

14, 20

Federal Statutes

28 U.S.C. $ 2254

State Statutes

18 Pa.C.S.A. $ 1102(a)(1)18 Pa.C.S.A. $ 2501.............

42 Pa.C.S.A. § 9541, et seq.

•if

Federal Rules

Supreme Court Rule 29 -Supreme Court Rule 33 -Supreme Court Rule 33.2

State Rules

Pa.R.Crim.P. Rule 801

Pa.R.Prof.Cond. Rule 8.4

Pa.R.Prof.Cond. Rule 8.4(a)

Pa.R.Prof.Cond. Rule 8.4(b)

Pa.R.Prof.Cond. Rule 8.4(c)

Pa.R.Prof.Cond. Rule 8.4(d)

Pa.R.Prof.Cond. Rule 8.4(f)

QUESTIONS PRESENTED FOR REVIEW

Ground I. Does Strickland v. Washington. 466 U.S. 668

(1984) prejudice threshold condone the actions of Counsel,

Thomas Kurt Fuchel, Sr., Esq. when Counsel assaults his

client pre-trial, covered up said assault defrauding the Trial

Court, thereby creating an extremely hostile environment in

which Counsel is incapable of operating within the

fundamental fairness of the proceeding where the P.C.R.A.

Court acquiesces to Counsel’s failure to investigate along

with the lack of presentation of valid impeachment evidence?

(Proposed Answer in the Positive)

Ground II. Does the prejudice under Strickland as

demonstrated within Ground I show that the United States

Court of Appeals failed to adequately apply said standard to

the initial grounds challenging the validity/veracity of the

Court failing to rule on in-court ineffective assistance of

counsel claims brought by Mr. Dennerlein regarding the

authorized access to the alleged victim’s bank account during

a five (5) month period, prior to the murder, undermining

the fundamental fairness of the entire trial proceeding along

with Counsel failing to object to two (2) of the prosecution’s

witnesses testimony regarding prior incarcerations of Mr.

Dennerlein?

(Proposed Answer in the Positive)

)

PARTIES

The Petitioner in the above captioned matter is Mr. Benjamin

Dennerlein, (Mr. Dennerlein), Pro Se, who resides at the State

Correctional Institution at Rockview, 1 Rockview Place, Box A.

Bellefonte, PA 16823.

Respondent in the above captioned matter is the Commonwealth

of Pennsylvania represented by a District Attorney, whose office is

located within the Beaver County District Attorney’s Office, Beaver

County Courthouse, 810 Third Street, Beaver, PA 15009.

Mark Garman is represented by Theron Richard Perez, Esq.,

Chief Counsel of the Department of Corrections, whose office is located

at 1920 Technology Parkway, Mechanicsburg, PA 17050.

CONCISE STATEMENT OF THE CASE

This is a Petition for Writ of Certiorari by Benjamin Dennerlein,

(Mr. Dennerlein), from the denial of the United States Court of Appeals

of the Third Circuit, at Docket Number 19-2241.

On June 17, 2009, Mr. Dennerlein was charged with criminal

homicide at information number CP-04-CR-0001592-2009. The charge

stemmed from an incident that occurred in Freedom Borough, Beaver

County, Pennsylvania, in either the late evening hours of May 12 or

early morning hours of May 13, 2009.

The alleged victim, Elizabeth

Grosskopf, (Ms. Grosskopf), was found dead in her residence at 1475

Fifth Avenue, Freedom Borough, Beaver County, Pennsylvania.

autopsy determined that Ms. Grosskopf died due to multiple stab

wounds to the head and neck areas.

After an investigation by the

Freedom Borough Police and the Beaver County Detective’s Bureau,

Mr. Dennerlein was charged with Criminal Homicide on June 17, 2009.

On July 26, 2010, a jury trial was scheduled before the Honorable John

Dohanich. Mr. Dennerlein was represented by Thomas Kurt Fuchel, Sr.,

Esq., (Mr. Fuchel), Assistant Public Defender for trial proceedings.

After a jury trial, Mr. Dennerlein was convicted of first degree murder

on August 4, 2010.1

On September 29, 2010, at a sentencing hearing before the

Honorable John Dohanich, Mr. Dennerlein, represented by Thomas

Kurt Fuchel, Sr., Esq., was sentenced to a term of life imprisonment

without the possibility of parole2. No post sentence motions were filed,

but a timely notice of appeal was filed Pro Se with the Superior Court of

Pennsylvania Western District

on October

27,

2010.

During

proceedings at the Superior Court, pursuant to an Order entered on

August 8, 2011, Mr. Dennerlein was appointed new Counsel, Mitchell P.

Shahen, Esq., (Mr. Shahen) after Trial Counsel, Mr. Fuchel, failed to

file Appellant’s Brief.

The Superior Court of Pennsylvania Western District affirmed the

judgment of sentence at Docket Number 1671 MDA 2010 on April 2,

2012.

The Supreme Court of Pennsylvania Western District denied

Petition for Allowance of Appeal, (Allocatur), at Docket Number 202

WAL 2012 on October 22, 2012.

1 18 Pa.C.S.A. § 2501.

2 18 Pa.C.SA. § 1102(a)(lV

Mr. Dennerlein filed a timely Pro Se Post Conviction Relief Act3,

(PCRA), Petition at information number CP-04-CR-0001592-2009 on

September 22, 2013. On October 7, 2013, Mr. Dennerlein was assigned

Counsel, Mr. Shahen, who represented Mr. Dennerlein during the

PCRA proceedings. On April 2, 2014, Mr. Shahen requested a nunc pro

tunc

extension within which to file the amended counseled, PCRA

petition. Mr. Dennerlein’s amended PCRA petition was filed April 7,

2014.

On May 4, 2014, the Honorable James J. Ross, issued an Order for

the Commonwealth to file a response in opposition to an Amended

PCRA filed on behalf of Mr. Dennerlein.

On May 20, 2014, it was

ordered that counsel for the Commonwealth and Counsel for Mr.

Dennerlein appear on May 27, 2014, before the Honorable James J.

Ross, at which time the Commonwealth shall establish cause why the

relief should not be granted, or that sanctions should not be imposed

against the Commonwealth for failure to comply with the Order dated

May 1, 2014.

3 42 Pa.C.S.A. § 9541, et seq.

On May 22, 2014, Counsel for the Commonwealth filed an answer

to Mr. Dennerlein’s amended PCRA, requesting all motions be denied in

their entirety and without hearing.

On June 6,

2014,

upon

consideration of all materials presented, the Court ordered a hearing on

Mr. Dennerlein’s Amended PCRA scheduled for August 4, 2014. After

briefing, the hearing was conducted on August 4, 6, & 8, 2014.

November

18,

2014,

the

Honorable

James

Ross

issued

Memorandum Opinion and Order denying Mr. Dennerlein’s Amended

PCRA Petition.

On December 18, 2014, Mr. Shahen filed a Notice of Appeal with

the Superior Court of Pennsylvania Western District, at Docket

Number 2065 WDA 2014. On November 16, 2015, the Superior Court of

Pennsylvania Western District issued an Opinion where the Court

adopted the entirety of the Trial Court’s opinion denying Mr.

Dennerlein’s PCRA Petition. On December 16, 2015, Mr. Dennerlein

through Counsel, Mr. Shahen, filed an Allocatur with the Supreme

Court of Pennsylvania Western District at Docket Number 494 WAL

2015.

On March 24, 2016, the Supreme Court of Pennsylvania

Western District, denied the Petition for Allocatur.

On June 1, 20164, Mr. Dennerlein filed a Petition for Writ of

Habeas Corpus with the United States District Court for the Western

District of Pennsylvania at Docket Number 2:16-cv-00780-MPK.

Honorable Magistrate Judge Maureen P. Kelly was assigned to the

matter based upon consent from all parties to the exercise of plenary

jurisdiction.

On May 16, 2019, the Honorable Magistrate Judge

Maureen P. Kelly issued an Opinion and Order in the matter, denying

the Petition for Writ of Habeas Corpus and denying issuance of a

Certificate of Appealability. Mr. Dennerlein filed a Notice of Appeal on

May 21, 2019. Mr. Dennerlein filed an Application for Certificate of

Appealability on June 10, 2019. After review the United States Court

of Appeals for the Third Circuit denied review at Docket Number: 192241. Mr. Dennerlein filed an Application for Rehearing to the United

States Court of Appeals for the Third Circuit on December 16, 2019.

After review the United States Court of Appeals for the Third Circuit

denied review on January 13, 2020 leading to this instant appeal.

4 Petition was filed with the Court, through the United States Clerk on June 16,

2016, however, utilizing Prisoner’s Mailbox Rule, Mr. Dennerlein’s Petition for

Writ of Habeas Corpus was docketed on June 1, 2016.

REFERENCE TO THE OPINIONS

DELIVERED IN THE COURTS BELOW

The Order of the United States Court of Appeals for the Third

Circuit is reproduced in its entirety at Appendix A. The Order of the

United States District Court of the Western District of Pennsylvania is

reproduced at Appendix B.

CONCISE STATEMENT OF JURISDICTION

The jurisdiction of this Honorable

Court applies to Mr.

Dennerlein’s instant appeal based on the Constitutional jurisdiction

granted to the United States Supreme Court by the founding fathers in

Article III $ 2 of the United States Constitution which states in

relevant part:

“The judicial power shall extend to all cases, in law and

equity, arising under this Constitution, the Laws of the

United States, and Treaties made, or which shall be made,

under their authority; - to all cases affecting Ambassadors,

other public Ministers and Consuls;

to all cases of

admiralty and maritime jurisdiction; - to controversies to

which the United States shall be a party; - to controversies

between two or more states; - between a State and citizens of

another State; - between citizens of different states; between citizens of the same state claiming lands under the

grants of different states, and between a state, or the

citizens thereof, and foreign states, citizens, or subjects. In

all cases affecting ambassadors, other public ministers and

consuls, and those in which a state shall be a party, the

Supreme Court shall have original jurisdiction. In all the

other cases before mentioned, the Supreme Court shall have

appellate jurisdiction, both as to law and fact, with such

exceptions, and under such regulations as the Congress shall

make.”

In the case sub judice, this Honorable Court retains appellate

jurisdiction upon the collateral review challenge to multiple instances of

Ineffective assistance of counsel during the representation of Counsel,

Mr. Thomas Kurt Fuchel, Sr., Esq., (Mr. Fuchel), challenging the

judgment of sentence imposed upon him in the Beaver County Court of

Common Pleas, Beaver County, Pennsylvania.

REASONS RELIED UPON FOR WRIT OF

CERTIORARI

Ground I. Does Strickland v. Washington. 466 U.S. 668 (1984)

prejudice threshold condone the actions of Counsel, Thomas Kurt

Fuchel, Sr., Esq. when Counsel assaults his client pre-trial, covered up

said assault defrauding the Trial Court, thereby creating an extremely

“hostile” environment in which Counsel is incapable of operating within

the fundamental fairness of the proceeding where the P.C.R.A. Court

acquiesces to Counsel’s failure to investigate along with the lack of

presentation of valid impeachment evidence?

Recently, an Eleventh Circuit District Court described the

prejudice prong of Strickland in scrupulous detail within their decision

in Broadnax, v. Dunn. 2019 U.S. Dist. LEXIS 214851 (2019). as the

Court opined:

"A petitioner's burden of establishing that his lawyer's

deficient performance prejudiced his case is also high." "It is

not enough for the [habeas petitioner] to show that the

errors had some conceivable effect on the outcome of the

proceeding." ("The likelihood of a different result must be

substantial, not just conceivable."). Instead, the habeas

petitioner "must show that there is a reasonable probability

that, but for counsel's unprofessional errors, the results of

the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine

confidence in the outcome...’ To satisfy this high standard, a

petitioner must present competent evidence proving "that

trial counsel's deficient performance deprived him of 'a trial

whose result is reliable.' In other words, ‘[a] finding of

prejudice requires proof of unprofessional errors so egregious

that the trial was rendered unfair and the verdict rendered

suspect."

(Broadnax. 2019 U.S. Dist. LEXIS at 25)(citing

Strickland. 466 U.S. at 693. 694. 695: Harrington v.

Richter. 562 U.S. 86 (2011) ; Van Povck v. Florida

Department of Corrections. 290 F.3d 1318. 1322 (11th

Cir. 2002); Brown v. Jones. 255 F.3d 1273. 1278 (11th

Cir. 2001); Johnson v. Alabama. 256 F.3d 1156. 1177

(11th Cir. 2001): and Stewart v. Secretary. Department

of Corrections. 476 F.3d 1193. 1209 (11th Cir. 2007)).

With the Broadnax Court’s explanation in mind, Mr. Dennerlein

presents the fact that the conduct of Thomas Kurt Fuchel, Sr., Esq.,

(Mr. Fuchel), meets the “egregious”5 nature of Strickland’s prejudice

requirement. Mr. Fuchel’s assault of Mr. Dennerlein during a pre-trial

interview with his paralegal, Ms. Dionna Steele, (Ms. Steele), present,

over a simple dispute initiating over discovery was not only a violation

of reasonable attorney conduct principles, but further, a direct violation

of Mr. Dennerlein’s right to be safe and secure in his person.6

Mr. Dennerlein contends that the nefarious pre-trial actions of

Mr. Fuchel severely hampered any further representation that could

have been rendered throughout the tribunal.

5 Id at 25.

6 Amendment 4. (U.S. Const.) states that: “The right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.”

In the matter sub judice, Mr. Fuchel, when pressed about his

ineffectiveness for failure to impeach Commonwealth witnesses went so

far as to accuse Mr. Dennerlein of physically assaulting Mr. Fuchel and

Ms. Steele about a month before trial during an interview at the Beaver

County Jail. This issue was addressed at the P.C.R.A. hearing and in

the P.C.R.A. Court’s Opinion.7

Mr. Dennerlein then testified that it was Mr. Fuchel himself who

was the aggressor, assaulting Mr. Dennerlein by slamming his hands

down on the table and leaping across the table at Mr. Dennerlein

knocking over Ms. Steele in the process. 8 Certain that Mr. Fuchel’s

version of events was the truth, the Commonwealth called Ms. Steele as

a witness to confirm Mr. Fuchel’s version of events.

To the

Commonwealth’s surprise, as well as Judge Ross’ surprise, Ms. Steele

confirmed Mr. Dennerlein’s version of events “to the letter,” saying Mr.

Fuchel was the “instigator” and Mr. Dennerlein was never anything but

a perfect gentleman during her interaction with Mr. Dennerlein. Ms

Steele went on to describe the attorney/client relationship as “hostile”9

7 P.C.R.A. Transcript, Volume I, pgs 2599-2602.

8 P.C.R.A. Transcript, Volume I, pgs 2754-2762.

9 P.C.R.A. Transcript, Volume III, pgs 2920-2934.

The P.C.R.A. Court ruled the events “troubling,” stunned that Ms.

Steele’s testimony matched Mr. Dennerlein’s “to the letter,” but yet

failed to give Mr. Dennerlein relief through the P.C.R.A. for this

outrageous, unethical, unprofessional, and criminal conduct prior-totrial by Mr. Fuchel.10

Neither the United States Court of Appeals for the Third Circuit

nor the United States District Court for the Western District of

Pennsylvania gave weight or consideration to Fuchel’s pre-trial assault

of Mr. Dennerlein in their opinion denying Mr. Dennerlein Habeas

relief.

At this time, through relevant research, Mr. Dennerlein has been

unable to ascertain any applicable stare decisis as when Counsel

assaults

his/her

client.

However,

distinguishment,

when

determining a defendant’s assault on an attorney, the Circuits are split

on the overall understanding of an assault on an attorney, yet the

Circuit’s concur in the method of Amendment 6. (U.S. Const.)

application.

Within the Second Circuit’s decision in Wilkerson v.

10 P.C.R.A. Memorandum Opinion, Judge James Ross, pgs. 2999-3000, adopted in

its entirety by the Superior Court of Pennsylvania.

Burge. 2005 U.S. Dist. LEXIS 14679 (2** Cir. July 20. 2005) the

Court opined that:

“[T]he defendant is unable to afford counsel, the state is

required to provide counsel at its expense, "unless the right

is competently and intelligently waived..." Here, the state

does not argue that Wilkerson waived his right to counsel.

Rather it asserts that, by reason of his conduct, he forfeited

his right to counsel. Applying the underpinnings of Illinois

v. Allen. 397 U.S. 337 (1970) that "a defendant who

misbehaves in the courtroom may forfeit his constitutional

right to be present at trial," the Eleventh Circuit held that "a

defendant who is abusive toward his attorney may forfeit his

right to counsel." United States v. McLeod. 53 F.3d 322.

325 (11th Cir. 1995) (upholding a finding of forfeiture of

counsel based upon the defendant's verbal abuse, repeated

threats of lawsuits, and requests that his counsel engage in

unethical conduct.).”

(Wilkerson. 2005 U.S. Dist. LEXIS at 13)

The Third Circuit within United States v. Leggett. 162 F.3d

237. 250 (3d Cir. 1998) that “unprovoked physical battery” causes

“forfeiture” of Counsel, where the Court opined:

“Forfeiture, on the other hand, does not require the knowing

and intentional relinquishment of a known right. Rather,

forfeiture ‘results in the loss of a right regardless of the

defendant's knowledge thereof and irrespective of whether

the defendant intended to relinquish the right...’ To forfeit

the right to legal representation, a defendant must engage in

‘extremely serious misconduct...’ For example, in McLeod, a

defendant's attorney testified that the defendant was

‘verbally abusive’; had ‘threatened to harm[the attorney]’;

had threatened to sue the attorney; and had tried to

. fc

persuade the attorney to engage in unethical conduct... The

district court concluded that the defendant's behavior was so

egregious as to constitute a forfeiture of the right to counsel - and the court of appeals for the Eleventh Circuit agreed by

affirming that decision... Leggett's conduct was even more

extreme than that of the defendant in McLeod. Whereas the

McLeod defendant's abuse of his attorney was verbal in

nature, Leggett's abuse was an unprovoked physical battery.

We do not hesitate to conclude that such an attack qualifies

as the sort of "extremely serious misconduct" that amounts

to the forfeiture of the right to counsel.. Certainly, it would

be difficult to quantify a death threat as any more or less

offensive to the sensibilities of civilized society than, say, an

actual physical assault. Both acts are reprehensible... We

concluded that a forfeiture ruling could not be based entirely

on evidence presented at an ex parte hearing...No such

evidentiary problem exists in this case. An evidentiary

hearing was not necessary because Leggett assaulted [the

attorney] in full view of the district court... In sum, we

conclude that the district court did not err in determining

that, by physically attacking his attorney, Leggett forfeited

his right to counsel at the sentencing hearing.”

(Leggett, 162 F.3d at 250)(citing McLeod, 53 F.3d at 322,

325 n.6: and United States v. Goldberg, 67 F.3d 1092,

1100, 1102 (3d Cir. 1995))

The instant matter is clearly set apart from the stare decisis

supra, as Mr. Dennerlein was attacked instead by Counsel, Mr. Fuchel.

It stands to reason that while its “difficult to quantify [the ‘unprovoked

physical battery’ by a defendant] as any more or less offensive to the

sensibilities of civilized society,”11 such actions by Counsel as the

“perpetrator,” is far more “egregious”12

In fact, throughout American jurisprudence, “[as] a practicing

attorney, [Mr. Fuchel] was held to a higher standard and was bound

to act as a prudent attorney [ ] under the circumstances. By failing

to take steps appropriate to an attorney... [Mr. Fuchel] breached his

duties and caused harm to [Mr. Dennerlein].13 Within Leggett and

Wilkerson. the penalty for the defendant assaulting the attorney was

that of removal of counsel. Mr. Dennerlein contends that similar relief

should be extended in the matter toward Mr. Fuchel.

A reasonable person would be at the least, exceedingly reluctant

to do business with any person, who had assaulted him. Nevertheless,

Mr. Dennerlein was in a position of dire need, a criminally accused

individual charged with a murder, facing the death penalty, then the

only attorney within Beaver County available to represent him as a

“death penalty qualified attorney,”14 assaulted him. It should be noted,

11 Leggett. 162 F.3d at 250.

12 Broadnax. 2019 U.S. Dist. LEXIS at 25.

13 The Estate of Thomas Brawner Sr.. 2016 Phila. Ct. Com. PI. LEXIS 238

(July 21. 2016).

14 Pa.R.Crim.P. Rule 801 (Qualifications for Defense Counsel in Capital Cases)(“In

all cases in which the attorney for the Commonwealth has filed a Notice of

that while Mr. Fuchel was “death penalty qualified,” prior to trial, the

death penalty was removed as a prosecution option, eliminating Mr.

Fuchel as the sole option for representation.

Mr. Fuchel created such a fear-provoking environment with Mr.

Dennerlein, that likening to a “battered wife,”15 or a survivor of war Mr.

Dennerlein was unable to terminate Counsel’s representation without

extreme fear of repercussion or elimination. In fact, at one point within

the proceedings, Mr. Dennerlein actually tried to terminate Counsel,

only to be forced to continue representation with Mr. Fuchel by the

Court.

Moreover, Mr. Fuchel told Mr. Dennerlein in their last pre

trial meeting after Mr. Fuchel was ordered to continue to represent Mr.

Dennerlein, “You’ve embarrassed me in front of my colleagues.

investigation of this case is over. We’re going to trial with what we got

here. You’re going to burn. Have a nice life.”16 This is proof Mr. Fuchel

Aggravating Circumstances pursuant to Rule 802, before an attorney may

participate in any stage of the case either as retained or appointed counsel, the

attorney must meet the educational and experiential criteria set forth in this

rule...”)

15 Commonwealth v. Stonehouse. 555 A.2d 772. 783 (describing “[a] battered

woman [as] a woman who is repeatedly subjected to any forceful physical or

psychological behavior by a man in order to coerce her to do something he wants her

to do without any concern for her rights...’ Battered women have been compared to

hostages, prisoners of war, and concentration camp victims”)

16 P.C.R.A. Transcript Volume # 2, pgs 2761-2762.

never even intended to investigate, or even knew, about impeachment

evidence at the time of trial.

Pennsylvania Rules of Professional Conduct is very clear on the

definition of professional misconduct where the Rules state within

Pa.R.Prof.Cond. Rule 8.4 that:

“Rule 8.4. Misconduct

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional

Conduct, knowingly assist or induce another to do so, or do

so through the acts of another;

(b) commit a criminal act that reflects adversely on the

lawyer's honesty, trustworthiness or fitness as a lawyer in

other respects;

misrepresentation;

(d) engage in conduct that is prejudicial to the

administration of justice;

(e) state or imply an ability to influence improperly a

government agency or official or to achieve results by means

that violate the Rules of Professional Conduct or other law;

(f) knowingly assist a judge or judicial officer in conduct that

is a violation of applicable rules of judicial conduct or other

law.”

Mr. Fuchel’s conduct, proven through testimony of Ms. Steele, (a

Commonwealth Witness); Mr. Dennerlein; and the blatant disregard of

Pennsylvania Rules of Professional conduct of Mr. Fuchel in violating

Pa.R.Prof.Cond. Rule(s) 8.4(a), (b). (c). (d). and

solidifying the

prejudice threshold within the foundation of the Strickland.

“There is a ‘strong presumption’ that an attorney's representation

falls within ‘the wide range of reasonable professional assistance.’”17

“The presumption is overcome only when an attorney error was so

egregious that

counsel's

representation

ultimately

‘amounted

incompetence’ under 'prevailing professional norms.'"18 In fact, stare

decisis requires that “attorney performance [is] "deficient" where errors

are 'so serious' that [the] attorney ‘no longer functions as 'counsel'

contemplated by the Sixth Amendment.’”19

While it was true that Mr. Fuchel was not “incompetent” as

required by the Richter Court’s interpretation of Strickland, supra,

Mr. Fuchel’s conduct of assaulting his client evidently surges toward

actions “so serious' that [the] attorney

‘no longer functions as

'counsel.”20 Such clearly outweighs the presumption of an attorney’s

representation is reasonable.

Mr. Dennerlein contends that Mr.

17 Richter. 562 U.S. at 104

18 Richter. 562 U.S. at 105

19 Maryland v. Kulbicki. 136 S. Ct. 2. 3. (2015) (per curiam)

29 Kulbicki. 136 S. Ct. at 2. 3

Fuchel's “deficient performance deprived him of 'a trial whose result is

reliable.’”21

It is apparent from the language of Strickland, along with other

associated stare decisis presented supra, that Mr. Dennerlein has

shown that this Honorable Court did not yield to Strickland

condoning, supporting, or permitting conduct in a nature that is

unbecoming or degrading of the legal profession, or allows for the

appearance of impropriety in said profession.

21 Broadnax. 2019 U.S. Dist. LEXIS at 25

Ground II. Does the prejudice under Strickland as demonstrated

within Ground I show that the United States Court of Appeals failed to

adequately apply said standard to the initial grounds challenging the

validity/veracity of the Court failing to rule on in-court ineffective

assistance of counsel claims brought by Mr. Dennerlein regarding the

authorized access to the alleged victim’s bank account during a five (5)

month period, prior to the murder, undermining the fundamental

fairness of the entire trial proceeding along with Counsel failing to

object to two (2) of the prosecution’s witnesses testimony regarding

prior incarcerations of Mr. Dennerlein?

Trial Counsel, the P.C.R.A. Court, and the Pennsylvania Superior

Court by adopting the P.C.R.A. Court’s Opinion as it’s own, completely

failed to give any weight to Mr. Dennerlein’s lawful, authorized access

to the victim’s bank account. After allowing evidence and testimony to

be presented proving Mr. Dennerlein’s access was authorized, the

P.C.R.A. Court simply ignored this evidence/testimony in it’s Opinion

denying relief based on Mr. Fuchel’s ineffectiveness at trial, relying

instead on how this evidence was presented at trial; as unauthorized

theft and as the sole motive to commit murder.

Now, the United States District Court and that of the United

States Court of Appeals further ignore the totality of this evidence by

claiming that because one Commonwealth witness, Laura Rankin, (Ms.

Rankin), made mention during her trial testimony that Mr. Dennerlein

had used the victim’s debit card on previous occasions in her presence,22

that should somehow be sufficient to challenge the Commonwealth’s

theory of motive to commit 1st degree murder?23

Contrary to the Court’s position that Mr. Dennerlein is attempting

to achieve Federal Habeas relief for errors made in collateral

proceedings.24 Mr. Dennerlein is actually claiming that the error was

made by trial counsel, then the proof of trial counsel’s errors was

presented during the collateral proceedings, then the P.C.R.A. Court

failed to give weight to it, as now is the United States District Court.

Put simply, the error is the trial counsel’s alone, and after proof of

Mr. Dennerlein’s authorized access to the victim’s bank account was

presented

the

P.C.R.A.

hearing,

the

P.C.R.A.

Court,

the

Pennsylvania Appellate Courts, and now the United States District

Court have all failed to give weight to the proof of trial counsel’s failure

that was presented as an ineffective claim at the P.C.R.A. hearing. The

Court goes further to state: “[E]ven if we were to review [Mr.

Dennerlein’s] Ground 2 [and Ground 3] de novo, we would find for the

22 Trail Transcript, Vol. IV, pp 340-41

23 Opinion at 24-6

24 Opinion at 24; See Lambert v. Blackwell. 387 F.3d 210, 247 (3rd Cir. 2004).

same reasons that [Mr. Dennerlein] fails to establish prejudice under

Ground One.”25

Prejudice under Strickland as to Ground One has been

demonstrated in this Petition for Writ of Certiorari, and if this Court

agrees the prejudice prong under Ground One has been met, then

prejudice has been proven to Ground Two and Three of Mr.

Dennerlein’s Writ of Habeas Corpus Petition also.

Lastly, the Court concedes as to Mr. Dennerlein’s Ground Three in

his Petition for Writ of Habeas Corpus that “we fail to see [how trial

counsel wanting or permitting the evidence of [Mr. Dennerlein’s]

incarceration to come before the jury] provides a reasonable ground for

his trial counsel not seeking a limiting instruction [or, curative]

instructions as to how the jury should consider the evidence of [Mr.

Dennerlein’s] incarceration, a claim of ineffectiveness that [Mr.

Dennerlein] also makes.”26

Again, based on the Court’s own words and if this Court feels

prejudice as to Ground One has been demonstrated by Mr. Dennerlein,

25 Opinion at 26, 29.

26 Opinion at 28, n. 2

then prejudice has been proven as to Mr. Dennerlein’s Ground Three in

his Petition for Writ of Habeas Corpus.

CONCLUSION

Strickland’s prejudice threshold fails to condone the actions of

Counsel, Thomas Kurt Fuchel, Sr., Esq. when he assaults Mr.

Dennerlein pre-trial, covered up said assault through defrauding the

Court, creating an extremely hostile, almost abusive environment in

which Mr. Fuchel was incapable of operating within the fundamental

fairness of the proceeding.

Mr. Dennerlein contends that the prejudice under Strickland as

demonstrated within Ground I show that the United States Court of

Appeals failed to adequately apply the prejudice threshold to the initial

grounds challenging the validity/veracity of the Court failing to rule on

in-court ineffective assistance of counsel claims brought by Mr.

Dennerlein regarding the authorized access to the alleged victim’s bank

account during a five (5) month period, prior to the murder, undermined

the fundamental fairness of the entire trial proceeding.

WHEREFORE, for the reasons, supra, Mr. Benjamin Dennerlein,

Pro Se, Appellant in the above captioned case, prays this Honorable

Court vacate the judgment of sentence by the Beaver County Court of

Common Pleas, recommend Mr. Fuchel for censure in accordance with

applicable requirements of law and/or any other prudent relief this

Honorable Court deems appropriate.

Respectfully Submitted,

Date: March 17, 2020

(signature)

Benjamin Dennerlein, JT1142

Pro Se, Petitioner

S.C.I. Rockview

1 Rockview Place/Box A

Bellefonte, PA 16823-0820

IN THE

Supreme Court of the United States

Benjamin Dennerlein,

) No:

Petitioner

)

) (U.S. Crt. of Appeals No: 19) 2241)

VS.

)

Superintendent, State Correctional

Institution at Rockview, Et. Al.,

Respondents

)

(U.S. Dist. Crt. West. Dist. Pa.

No: 2:16-cv-00780-MPK)

PETITION FOR WRIT OF

CERTIORARI

CERTIFICATE OF COMPLIANCE

This brief complies with both the page limit along with the type-

volume limitation of Supreme Court Rule 33 due to the following:

(a) This brief contains less than forty (40) pages, inclusive of four

thousand six hundred ninety four, (4,694) words, or thirty

thousand eighty-four (30,084) characters including spaces

excluding the parts of the brief excluded by Supreme Court

Rule 33.2

This brief complies with the typeface and the type style

requirements of Supreme Court Rule 33 due to the following:

(a) This brief has been prepared in a proportionally spaced

typeface using Microsoft Word 2002 SP3, Version 10.6612.6626 in

Century Schoolbook, with a font size of 14.

Respectfully Submitted,

Date: March 17, 2020

(signature)

Benjamin Dennerlein, JT1142

Pro Se, Petitioner

S.C.I. Rockview

1 Rockview Place/Box A

Bellefonte, PA 16823-0820

IN THE

Supreme Court of the United States

Benjamin Dennerlein,

) No:

Petitioner

)

) (U.S. Crt. of Appeals No: 19) 2241)

VS.

)

Superintendent, State Correctional

Institution at Rockview, Et. Al.,

Respondents

) (U.S. Dist. Crt. West. Dist. Pa.

) No: 2:16-cv-00780-MPK)

)

) PETITION FOR WRIT OF

) CERTIORARI

CERTIFICATE OF SERVICE

I, Benjamin Dennerlein, pro se, Petitioner in the above captioned

matter, do hereby aver that copies of the attached/enclosed Petition for

Writ of Certiorari have been mailed to the below listed person(s) by

First Class Mail, postage paid, on this 17th day of March, 2020, in

compliance with Supreme Court Rule 29.

This service also satisfies the applicable requirements of the

Prisoner’s Mailbox Rule, outlined in Houston v. Lack. 108 S.Ct.

2379 (1988): and its Pennsylvania progeny in Commonwealth v.

Jones. 700 A.2d 423 (1997): and under penalty of perjury (28 U.S.C. $

1746).

Service by First Class Mail:

Scott S. Harris, Clerk

Supreme Court of the

United States

1 1st Street, NE

Washington, DC 20543-0001

Joshua Shapiro, Esq.

Attorney General of Pennsylvania

15th FI. Strawberry Square

Harrisburg, PA 17120

Service by First Class Mail:

Jennifer Popovich, Esq.

Office of the District Attorney

Beaver County Courthouse

810 Third Street

Beaver, PA 15009

Theron Richard Perez

Chief Counsel

Department of Corrections

1920 Technology Parkway

Mechanicsburg, PA 17050

Respectfully Submitted,

•5SE

Date: March 17, 2020

(signature)

Benjamin Dennerlein, JT1142

Pro Se, Petitioner

S.C.I. Rockview

1 Rockview Place/Box A

Bellefonte, PA 16823-0820

IN THE

Supreme Court of the United States

) No:

Benjamin Dennerlein,

Petitioner

)

) (U.S. Crt. of Appeals No: 19) 2241)

VS.

)

) (U.S. Dist. Crt. West. Dist. Pa.

) No: 2:16-cv-00780-MPK)

Superintendent, State Correctional

Institution at Rockview, Et. Al.,

Respondents

)

) PETITION FOR WRIT OF

) CERTIORARI

UNSWORN DECLARATION

The facts set forth in the foregoing Petition for Writ of Certiorari

are true and correct to the best of the Mr. Dennerlein’s knowledge,

information, and belief and are verified subject to the penalties for

unsworn falsification to authorities under the United States Code (28

U.S.C. § 1746).

No Notary

Required

Respectfully Submitted,

Date: March 17, 2020

(signature)

Benjamin Dennerlein, JT1142

Pro Se, Petitioner

S.C.I. Rockview

1 Rockview Place/Box A

Bellefonte, PA 16823-0820

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.