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

Supreme Court briefAug 11, 2020

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Supreme Court, U.S.

FILED

NO.

20-55

AUG 1 1 2020

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

Andrew Darvin Hersh,

Petitioner

Mark Garman, Superintendent, State Correctional

Institution at Rockview, Et. Al.,

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 19-2125 affirming the Order of Robert D.

Mariani, District Judge for the United States District

Court of the Middle District of Pennsylvania at Docket

Number 3:16-cv-02290-RDM-CA denying a Petition for

Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.

Andrew Darvin Hersh, JW2630

Pro Se, Petitioner

State Correctional Institution at Rockview

1 Rockview Place

Bellefonte, PA 16823-0820

:o ft

TABLE OF CONTENTS

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

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

QUESTIONS PRESENTED FOR REVIEW

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

•••

111

CONCISE STATEMENT OF THE CASE....

REFERENCE TO THE OPINIONS DELIVERED IN

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

THE

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

REASONS RELIED UPON FOR WRIT OF CERTIORARI

Ground I. Does a ‘non-custodial’ confession uttered under the

influence of the prescription drug, ‘Ativan,’ render a confession

involuntary and inadmissible when the drug administered to Mr.

Hersh was never proven by state’s evidence to not significantly hinder

Mr. Hersh’s cognitive ability while Appellate Counsel, Thomas R. Nell

Esq.’s actions denied Mr. Hersh the ability to raise this claim of

ineffective assistance of counsel for Trial Counsel, Warren P. Bladen

Esq.’s failure to suppress said confession?

Ground II. Do flawed credibility determinations of a State Court

permanently insulate the State Court’s findings from Federal Court

review where objective evidence within the certified record

obviously contradicts the credibility determinations made by the

State Court?

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

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE........

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

TABLE OF AUTHORITIES

United States Supreme Court Cases

Anders v. California, 386 U.S. 738 (1967)...........

Anderson v. Bessemer City, 470 U.S. 564 (1985)

..........26, 27

Beckwith v. United States, 425 US 341 (1976) —

16, 17, 18, 25

California v Beheler, 463 US 1121, 1125, (1983) (per curiam)

Davis v North Carolina, 384 US 737, 740, 741-742 (1966)......

Frazier v Cupp. 394 US 731. 739 (1969)................

Gallow v. Cooper, 570 U.S. 933 (2013)...................

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

Martinez v. Ryan, 566 U.S. 1 (2012).......................

21, 22, 23, 25

Miller-El v. Cockrell 537 U.S. 322. 340 (2003)

Miranda v. Arizona, 384 U.S. 436 (1966)...............

14, 15, 16

Orozco v. Texas, 394 U.S. 324, 326-327 (1969)......

Rogers v Richmond, 365 US 534, 544 (1961)........

Stansburv v. California, 511 U.S. 318, 324 (1994)

Strickland v. Washington. 466 U.S. 668 (1984)-21, 22, 24, 28, 29, 30, 32

Thompson v. Keohane, 516 U.S. 99 (1995).................................... .

Trevino v. Thaler, 569 U.S. 413 12013)........................................... .

22, 23

United States v United States Gypsum Co.. 68 S Ct 525 (1948)

United States v. Raddatz, 447 U.S. 667, 669 (1980)....................

Wainwright v Witt, 469 US , (1985)...............................................

Wiggins v. Smith, 539 U.S. 510 (2003)........................................... .

Federal Cases

Fahv v. Horn. 516 F.3d 169. 196 (2008)................................

Lambert v. Blackwell, 387 F.3d 210, 236 (3rd Cir. 2004) —

Ramonez v. Berghuis, 490 F.3d 482, 490 (6th Cir. 2007) —

Steigler v. Anderson, 496 F.2d 793, 798 (3d Cir. 1974)......

Taylor v. Maddox, 366 F.3d 992, 999-1000 (9th Cir. 2004)United States v. Jacobs, 312 F. Supp. 2d 619 (2004)..........

United States v. Leese, 176 F.3d 740, 743 (3d Cir. 1999)Valdez v. Cockrell, 274 F.3d 941, 951 n. 17 (5th Cir. 2001)

27, 30

14, 15, 17

State Cases

Commonwealth v. Culberson, 358 A.2d 416, 417 (1976)

Commonwealth v. Delbridge, 855 A.2d 27. 39 (2003)

Commonwealth v. Johnson, 966 A.2d 523 (2009)

Commonwealth v. Jones, 322 A.2d 119, 125 (1974) Commonwealth v. Jones. 700 A.2d 423 (1997).........

Commonwealth v. Manning. 435 A.2d 1207 (1981)-Commonwealth v. Nester, 709 A.2d 879. 882 (1998)

Commonwealth v. Smith, 291 A.2d 103 (1972).....

Commonwelath v. Grant, 813 A. 3d 726 (Pa. 2002)

28, 29

Federal Constitutional Provisions

Article III § 2

Federal Statutes

28 U.S.C. § 2241........

28 U.S.C. § 2254........

28 U.S.C. $ 2254(d)(2)

28 U.S.C. $ 2254(e)(1)-

i, 8

27, 28

State Statutes

18 Pa.C.S.A. $ 3121(c)......

18 Pa.C.S.A. $ 3126(a)(7) 18 Pa.C.S.A. § 6301...........

42 Pa.C.S.A. $ 9541, et seq.

42 Pa.C.S.A. $ 9718...........

Federal Rules

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

State Rules

Pa.R.A.P. Rule 1925(a) —

Pa.R.A.P. Rule 1925(b)(4)

Pa.R.Crim.P. Rule 907(1)

Other Authorities

F. Inbau, J. Reid, & J. Buckley, Criminal Interrogation and

Confessions at 232, 236, 297-298 (3d ed. 1986)................... .

QUESTIONS PRESENTED FOR REVIEW

Ground I. Does a “non-custodial” confession uttered under

the influence of the prescription drug, “Ativan,” render a

confession involuntary and inadmissible when the drug

administered to Mr. Hersh was never proven by state’s

evidence to not significantly hinder Mr. Hersh’s cognitive

ability while Appellate Counsel, Thomas R. Nell Esq.’s

actions denied Mr. Hersh the ability to raise this claim of

ineffective assistance of counsel for Trial Counsel, Warren P.

Bladen Esq.’s failure to suppress said confession?

(Proposed Answer in the Positive)

Ground II. Do flawed credibility determinations of a State

Court permanently insulate the State Court’s findings from

Federal Court review where objective evidence within the

certified record obviously contradicts the credibility

determinations made by the State Court?

(Proposed Answer in the Positive)

PARTIES

The Petitioner in the above captioned matter is Mr. Andrew

Darvin Hersh, (Mr. Hersh), Pro Se, who currently is incarcerated within

the State Correctional Institution at Rockview, 1 Rockview Place,

Bellefonte, PA 16823.

Respondent in the above captioned matter is the Commonwealth

of Pennsylvania represented by Assistant District Attorney, Kelly L.

Margetas, Esq. whose office is located within the Adams County District

Attorney’s Office, Adams County Courthouse, 111 Baltimore Street,

Rm. 6, Gettysburg, PA 17325.

Mark Garman is represented by Joshua Shapiro, Esq., the

Attorney General of Pennsylvania, whose office is located at 15th FI.

Strawberry Square, Harrisburg, PA 17120.

CONCISE STATEMENT OF THE CASE

This is a Petition for Writ of Certiorari by Andrew Darvin Hersh,

(Mr. Hersh), from the denial of Certificate of Appealability and an

Application for Rehearing to the United States Court of Appeals of the

Third Circuit, at Docket Number 19-2125.

On August 10, 2010, Mr. Hersh was adjudicated guilty on Count 1,

Rape of a Child, 18 Pa.C.S.A. § 3121(c). a Felony of the First Degree;

Count 3, Indecent Assault, Person Less than 13 Years of Age, 18

Pa.C.S.A. § 3126(a)(7). a Felony of the Third Degree; and Count 4,

Corruption of Minors, 18 Pa.C.S.A. § 6301. a Misdemeanor of the First

Degree after a jury trial.

On November 12, 2010, the Honorable

Michael A. George sentenced Mr. Hersh to a sentence of thirteen (13) to

thirty (30) years at a State Correctional Institution, based on the

Mandatory Minimum provisions pursuant to 42 Pa.C.S.A. § 9718. The

Court determined that Counts 3 and 4 merged with Count 1 for

sentencing purposes.

Mr. Hersh, through counsel, filed Notice of Appeal. On May 20,

2011, Mr. Hersh’s Direct Appeal was dismissed for a failure to file a

brief, at Superior Court Docket Number 1872 MDA 2010.

Mr. Hersh filed a Pro Se, Post Conviction Relief Act, (P.C.R.A.),

Petition on June 17, 2011.

After a pre-hearing video conference

regarding the P.C.R.A. Petition, the Court issued an Order dated

September 8, 2011 granting the P.C.R.A. Petition by reinstating Mr.

Hersh’s appellate rights. A Notice of Appeal was filed, through Counsel

on September 15, 2011. On June 20, 2012, Mr. Hersh’s Direct Appeal to

the Superior Court of Pennsylvania was affirmed at Docket Number

1639 MDA 2011. Mr. Hersh, through counsel, did not file a Petition for

Allowance of Appeal.

Mr. Hersh, through counsel, filed a P.C.R.A. Petition on August

22, 2012.

On December 20, 2012, after a pre-hearing conference

regarding the P.C.R.A. Petition, an Evidentiary Hearing was scheduled

for March 25, 2013. The Evidentiary Hearing was then continued in an

Order by the Honorable Michael A. George to June 17, 2013. At the

conclusion of the June 17, 2013, Evidentiary Hearing, the Court stated

that it would issue an opinion. On August 6, 2013, the Court issued an

Opinion and Order dismissing the P.C.R.A. Petition.

Appeal was filed on August 22, 2013.

A Notice of

On November 9, 2013, Mr.

Hersh’s Counsel, Thomas R. Nell, Esq., filed a Petition to Withdraw as

Counsel.

On November 27, 2013, Mr. Hersh filed an Application to

Proceed Pro Se to the Superior Court of Pennsylvania. The Superior

Court granted the Pro Se Application on December 4, 2013. Mr. Hersh

filed a Pro Se brief on December 19, 2013.

On April 11, 2014, the

Superior Court of Pennsylvania affirmed the Order dismissing Mr.

Hersh’s P.C.R.A. Petition at Docket Number 1535 MDA 2013.

Mr. Hersh then filed a timely Petition for Allowance of Appeal

with the Supreme Court of Pennsylvania on April 24, 2014.

The

Commonwealth filed a “No Answer” letter to Mr. Hersh’s Petition for

Allowance of Appeal on May 2, 2014. Mr. Hersh filed an Application for

Leave to Amend on May 16, 2014.

On May 24, 2014, the

Commonwealth filed a “No Answer” letter to Mr. Hersh’s Application

for Leave to Amend.

On August 21, 2014, the Supreme Court of

Pennsylvania granted Mr. Hersh’s Application for Leave to Amend, but

denied his Petition for Allowance of Appeal at Docket Number 271 MAL

2014.

On August 25, 2014, Mr. Hersh filed a second P.C.R.A. Petition.

On September 16, 2014, the Honorable Michael A. George issued an

Order of Intent to Dismiss Mr. Hersh’s P.C.R.A. Petition pursuant to

Pa.R.Crim.P. Rule 907(1). Mr. Hersh filed an Objection to Intent to

Dismiss Post Conviction Relief Act Petition Without a Hearing on

September 25, 2014.

On January 12, 2015, Mr. Hersh filed an

Application for Leave to Amend Post Conviction Relief Act Petition. On

February 5, 2015, the Honorable Michael A. George issued an Opinion

and Order denying Mr. Hersh’s P.C.R.A. Petition without a hearing.

On February 17, 2015, Mr. Hersh filed a Notice of Appeal. On

March 3, 2015, the Honorable Michael A. George issued an Order for

Mr. Hersh to file a Concise Statement of Matters Complained on

Appeal. Mr. Hersh filed a Concise Statement of Matters Complained on

Appeal on March 10, 2015. On March 25, 2015, the Honorable Michael

A. George issued an Opinion pursuant to Pa.R.A.P. Rule 1925(a). On

April 15, 2015, the Superior Court of Pennsylvania issued an Order

requiring Mr. Hersh to file briefs on the matters on or before May 26,

2015. Mr. Hersh filed his Brief for Appellant on April 15, 2015. On

April 23, 2015, upon receipt of Mr. Hersh’s Brief for Appellant, the

Superior Court of Pennsylvania issued an Order requiring the

Commonwealth to file briefs on or before May 20, 2015. On May 19,

2015, Mr. Hersh filed an Application to Set Bail Pending Appeal. On

May 19, 2015, the Commonwealth, through counsel, filed Brief for

Appellee. On May 27, 2015, the Superior Court of Pennsylvania issued

an order denying Mr. Hersh’s request for Bail Pending Appeal.

August 21, 2015, the Superior Court issued an Order and Opinion

affirming the Order of the P.C.R.A. Court at Docket Number 317 MDA

2015.

On August 29, 2015, Mr. Hersh filed an Application for ReArgument with the Superior Court of Pennsylvania. On October 29,

2015

the Superior Court of Pennsylvania denied Mr. Hersh’s

Application for Re-Argument at Docket Number 317 MDA 2015.

On November 13, 2015, Mr. Hersh filed a Petition for Allowance of

Appeal, (Allocatur), with the Supreme Court of Pennsylvania.

The

Commonwealth declined to answer the Allocatur. The Supreme Court

of Pennsylvania denied the Petition for Allowance of Appeal,

(Allocatur), at Docket Number 921 MDA 2015 on March 8, 2016.

On April 29, 2016, Mr. Hersh filed a Writ of Certiorari with the

United States Supreme Court. The Commonwealth declined to answer

the Writ of Certiorari. The United States Supreme Court denied Writ

of Certiorari at Docket Number 15-9217 on June 13, 2016.

On June 24, 2016, Mr. Hersh filed a Petition for Writ of Habeas

Corpus with the Pennsylvania Supreme Court at Docket Number 87

MM 2016. The Commonwealth declined to answer the Writ of Habeas

Corpus. The Pennsylvania Supreme Court denied the Writ of Habeas

Corpus on August 22, 2016.

On September 23, 2016, Mr. Hersh filed a Petition for Writ of

Habeas Corpus pursuant to 28 U.S.C. § 2241 with the United States

District Court of the Middle District of Pennsylvania. On October 17,

2016, the Honorable Robert D. Mariani, dismissed the Petition for Writ

of Habeas Corpus without prejudice for lack of jurisdiction.

On November 4, 2016, Mr. Hersh filed a Writ of Habeas Corpus

pursuant to 28 U.S.C. § 2254 with the United States District Court of

the Middle District of Pennsylvania at Docket Number 3:16-cv-02290RDM-CA, regarding issues filed previously with this Honorable Court

on previously erroneous filed Writ of Habeas Corpus pursuant to 28

U.S.C. § 2241.

On May 10, 2019, the Honorable Robert D. Mariani denied the

Petition for Writ of Habeas Corpus.

On May 14, 2019, Mr. Hersh filed a Notice of Appeal to the United

States District Court of the Middle District of Pennsylvania appealing

the ruling of the Honorable Robert D. Mariani to the United States

Court of Appeals for the Third Circuit.

On May 29, 2019, Mr. Hersh filed an Application for Certificate of

Appealability to the United States Court of Appeals for the Third

Circuit at Docket Number 19-2125.

On February 7, 2020, the United States Court of Appeals for the

Third Circuit denied Mr. Hersh’s Application for Certificate of

Appealability.

On February 11, 2020, Mr. Hersh filed a Motion for Extension of

Time to File a Petition for Rehearing of the Application for Certificate of

Appealability.

In lieu of an answer from the United States Court of Appeals for

the Third Circuit, Mr. Hersh filed a Petition for Rehearing of the

Application for Certificate of Appealability on February 23, 2020.

On March 6, 2020, the United States Court of Appeals for the

Third Circuit granted the Motion for Extension of Time by filing the

Petition for Rehearing of the Application for Certificate of Appealability

that day.

On May 18, 2020, Mr. Hersh’s Petition for Rehearing of the

Application for Certificate of Appealability was denied, giving rise to

this instant appeal.

REFERENCE TO THE OPINIONS

DELIVERED IN THE COURTS BELOW

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

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

United States District Court of the Middle District of Pennsylvania is

reproduced at Appendix B.

CONCISE STATEMENT OF JURISDICTION

The jurisdiction of this Honorable Court applies to Mr. Hersh’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. Warren P. Bladen, Esq., (Mr. Bladen), challenging the judgment of

sentence imposed upon him in the Adams County Court of Common

Pleas, Adams County, Pennsylvania.

REASONS RELIED UPON FOR

WRIT OF CERTIORARI

Ground I. Does a “non-custodial” confession uttered under the

influence of the prescription drug, “Ativan,” render a confession

involuntary and inadmissible when the drug administered to Mr. Hersh

was never proven by state’s evidence to not significantly hinder Mr.

Hersh’s cognitive ability while Appellate Counsel, Thomas R. Nell

Esq.’s actions denied Mr. Hersh the ability to raise this claim of

ineffective assistance of counsel for Trial Counsel, Warren P. Bladen

Esq.’s failure to suppress said confession?

Within Thompson v. Keohane, 516 U.S. 99 (1995) this

Honorable Court opined:

“The ultimate ‘in custody’ determination for Miranda v.

Arizona, 384 U.S. 436 (1966) purposes, we are persuaded,

fits within the latter class of cases. Two discrete inquiries

are essential to the determination: [F]irst, what were the

circumstances surrounding the interrogation; and [S]econd,

given those circumstances, would a reasonable person have

felt he or she was not at liberty to terminate the

interrogation and leave. Once the scene is set and the

players' lines and actions are reconstructed, the court must

apply an objective test to resolve ‘the ultimate inquiry’:

‘[was] there a 'formal arrest or restraint on freedom of

movement' of the degree associated with a formal arrest."

(Thompson, 516 U.S. at 112)(citing California v Beheler,

463 US 1121, 1125, (1983) (per curiam) and Oregon v,

Mathiason, 429 US 492, 495 (1977D.

Within United States v, Jacobs. 312 F. Supp. 2d 619 (2004).

the Third Circuit Court of Appeals further opined that:

“The key inquiry in the determination of whether an

individual is in ‘custody’ for the purposes of Miranda is

‘whether there is a formal arrest or restraint on freedom of

movement of the degree associated with a formal arrest.’

Stated another way, custody means the deprivation of an

individual's ‘freedom of action in any significant way.’ A

conclusion of custody is ‘not susceptible of an exact

definition[,] . . . the determination . . . must be made on a

case-by-case basis... Further, the determination of custody

is an objective inquiry, one that evaluates the circumstances

of the interrogation... A custodial interrogation may occur

outside of a police station, and, moreover, have taken place

absent a formal arrest... However, 'station-house'

interrogations should be scrutinized with extreme care for

any taint of psychological compulsion or intimidation

because such pressure is most apt to exist while a defendant

is interviewed at a police station... The protections of

Miranda are not required merely because law enforcement

officers suspect the person they are questioning of a crime.

However, ‘the more cause for believing the suspect

committed the crime, the greater the tendency to bear down

in interrogation and to create the kind of atmosphere of

significant restraint that triggers Miranda . . . But this is

simply one circumstance, to be weighed with all the others...’

Further, if undisclosed to the individual being questioned, a

law enforcement officer's subjective view that an individual

he or she is questioning is a suspect does not bear upon the

question of whether an individual is in custody for the

purposes of Miranda.”

(Jacobs. 312 F. Sunn. 2d at 627, 628)(citing United

States v. Leese. 176 F.3d 740. 743 (3d Cir. 1999):

Steigler v. Anderson. 496 F.2d 793. 798 (3d Cir. 1974):

Miranda. 384 U.S. at 444: Orozco v. Texas. 394 U.S. 324.

326-327 (1969): Stansburv v. California. 511 U.S. 318.

324 (1994) and F. Inbau. J. Reid. & J. Buckley.

Criminal Interrogation and Confessions at 232. 236.

297-298 (3d ed. 1986)).

Instantly, Mr. Hersh was interrogated within a “station house,”1

yet was alleged to have been a “non-custodial” interview due to the fact

that Mr. Hersh was “free to leave.” This principle of being “free to

leave” is not the sole guise of determining custodial versus noncustodial.

Had the interview been custodial, Miranda would have

directly applied. Since Mr. Hersh never was given his proper Miranda

warnings, Mr. Hersh’s “confession” would have simply been invalid for

lack of proper application of Miranda, yet strategically, the prosecution

utilized the “non-custodial” label to allow the “confession” be admissible.

However, this Honorable Court held within Beckwith v. United

States. 425 US 341 (1976) that:

“[N]on[-]custodial interrogation[s] might possibly[,] in some

situations, by virtue of some special circumstances, [can] be

characterized as one where "the behavior of... law

enforcement officials was such as to overbear petitioner's

will to resist and bring about confessions not freely selfdetermined...’ When such a claim is raised, it is the duty

of an appellate court, including this Court, ‘to examine

the entire record and make an independent

determination of the ultimate issue of voluntariness • • •

Proof that some kind of warnings were given or that none

were given would be relevant evidence only on the issue of

whether the questioning was in fact coercive.”

i Pennsylvania State Police Barracks, 3303 Old Harrisburg Road,

17325.

Gettysburg, PA

(Beckwith, 425 US at 348)(emphasis added)(citing Rogers

v Richmond. 365 US 534. 544 (1961): Davis v North

Carolina. 384 US 737. 740. 741-742 (1966): Frazier v

Cupp. 394 US 731. 739 (1969)).

Instantly, the United States District Court, along with the United

States Court of Appeals had a “[duty] ‘to examine the entire record and

make an independent determination of the ultimate issue of

voluntariness’”2

The independent appellate court(s) failed in this duty, eliminating

a constitutional challenge in Mr. Hersh’s matter due to the simple fact

that even in the event of a non-custodial interrogation, “[the Court]

must still examine the totality of the circumstances surrounding the

interrogation to determine if his confession was voluntary because a

non[-]custodial interrogation ‘might possibly in some situations, by

virtue of some special circumstances,’ result in an involuntary

confession.”3

Further, under this auspice, along with the Jacobs court

analysis, such interrogations “should be scrutinized with extreme care

for any taint of psychological compulsion or intimidation because such

2 Beckwith. 425 US at 348

pressure is most apt to exist while a defendant is interviewed at a police

station,”4

Trial Counsel, Warren P. Bladen, Esq., (Mr. Bladen), failed to

adequately determine if Mr. Hersh was interrogated through an actual

“non-custodial” interview and if the “psychological compulsion”5 on Mr.

Hersh was such during said interview that Mr. Hersh believed he was

in custody at the time.

Mr. Hersh through the certified record was proven to be under the

influence of the prescription Benzodiazepine drug, Ativan, (Lorazepam)

as shown within the notes of testimony.6

Mr.

Hersh’s intoxication during the interrogation on the

Benzodiazepine drug, Ativan is well established. Although, within both

Pennsylvania and American jurisprudence, it is well settled that:

3 Commonwealth v. Nester. 709 A.2d 879, 882 (1998)(citing Beckwith. 425 U.S.

at 348).

4 Id at 628.

5 Id at 628.

6 Accord N.T., Transcripts of Proceeding of Jury Trial, August 9, 2010, 147:18-25,

148:1-12; N.T., Transcripts of Proceeding of Jury Trial, August 9, 2010, 182:9-17,

182:23-25; N.T., Transcripts of Proceeding of Jury Trial, August 9, 2010, 183:1-5,

183:9-15; N.T., Transcripts of Proceeding of Jury Trial, August 9, 2010, 184:10-25,

185:1-25; N.T., Transcripts of Proceeding of Jury Trial, August 9, 2010, 186:25,

187:1-3; and N.T., Transcripts of Proceeding of Jury Trial, August 9, 2010, 201:3-13;

N.T., Transcripts of Proceeding of Jury Trial, August 9, 2010, 203:l-23.(Exhibit A);

(See also Page 1, Police Report, Exhibit B).

“‘[i]ntoxication is a factor to be considered, but is not sufficient, in and of

itself to render a confession involuntary...’ ‘The test is whether there

was sufficient mental capacity for the defendant to know what he was

saying and to have voluntarily intended to say it...’ The duty of the

suppression court is to determine whether the Commonwealth has

established by a preponderance of the evidence that the confession was

voluntary and that the waiver of constitutional rights were knowing

and intelligent.”7

As such, it was the duty of Counsel, Mr. Bladen to file a

suppression motion prior to trial, call an expert toxicologist at a

suppression hearing, call an expert toxicology witness or object to the

sarcasm as prejudicial during trial to support Mr. Hersh’s claims of

what occurs during an overdose of “Ativan.”

Mr. Bladen, however,

failed in this duty.

Mr. Hersh contends that the written admission of guilt/ confession

referenced supra is blatantly inadmissible due to the fact the written

admission of guilt/ confession was not willing, knowing, or voluntary.

7 Fahv v. Horn. 516 F.3d 169. 196 (2008)(citing Commonwealth v. Jones. 322

A.2d 119. 125 (1974): Commonwealth v. Culberson. 358 A.2d 416, 417 (1976):

Commonwealth v. Manning. 435 A.2d 1207 (1981): and Commonwealth v.

Smith. 291 A.2d 103 (1972b.

As said written admission of guilt/ confession was rendered during the

intoxication of a known mind altering substance.

Such a failure was further hindered by Court Appointed P.C.R.A.

Counsel, Thomas Richard Nell, Esq.’s, (Mr. Nell), inaction.

Mr. Nell

filed a “Petition to Withdraw as Counsel” as an “Anders Brief’8 to the

Superior Court of Pennsylvania on November 9, 2013, only months after

filing a Notice of Appeal on August 22, 2013, along with a Statement of

Matters Complained of on Appeal pursuant to Pennsylvania Rules of

Appellate Procedure, (Pa.R.A.P.), Rule 1925(b) on September 12,

2013.9

With Mr. Nell’s “Anders Brief’ being filed Mr. Hersh was left

with no choice but to proceed Pro Se without the proper assistance of

counsel.

Mr. Nell’s failure to raise the instant claim of ineffectiveness of

trial counsel into the Pa.R.A.P. Rule 1925(b) statement prohibited Mr.

Hersh from raising this relevant issue before the Superior Court of

8 Anders v. California. 386 U.S. 738 (1967)(describing the requirements of an

Anders brief that is filed when appointed counsel seeks to withdraw from a direct

appeal [/collateral attack] based on a determination that the issues presented are

wholly frivolous.).

9 See Pa.R.A.P. Rule 1925(b). Statement of Matters Complained of on Appeal.

Pennsylvania

“initial-review

Pa.R.A.P. Rule 1925(b)(4)(vii).11

collateral

proceeding”10

appeal.

Waiver of the claim would have

been predicated under the fact that the claim was never raised,

therefore, Mr. Hersh was denied the opportunity by Counsel, Mr. Nell

to properly exhaust his remedies on this extremely relevant issue.

Along with Mr. Nell’s failure when Mr. Hersh finally raising this

issue Mr. Hersh relied on the second exception within Martinez v.

Rvan, 566 U.S. 1 (2012) “where appointed counsel in the initial-review

collateral proceeding, where the claim should have been raised, was

ineffective under the standards of Strickland v. Washington. 466

U.S. 664 (1984).”12

therefore a procedural default will not bar Mr.

Hersh from proceeding with the relevant claim presented.

Within Martinez this Honorable Court addressed whether the

issue of “ineffective assistance of counsel in an initial review collateral

proceeding on a claim of ineffective assistance at trial,”13 “[could]

provide cause for a procedural default in a federal habeas proceeding.”14

10 Martinez. 566 U.S. at 14

11 “(vii) Issues not included in the Statement and/or not raised in accordance with

the provisions of this paragraph (b)(4) are waived.”

12 Martinez. 566 U.S. at 14

13 Id. at 9.

14 Id. at 9.

The Martinez Court held that “[inadequate assistance of counsel at

initial-review collateral proceedings may establish cause for a prisoner’s

procedural default of a claim of ineffective assistance at trial.”15

Specifically, the Court determined a standard where two (2) exceptions

establish “cause” in this context:

“[W]hen a State requires a prisoner to raise an ineffectiveassistance of-trial-counsel claim in a collateral proceeding, a

prisoner may establish cause for a default of an ineffectiveassistance claim in two circumstances. The first is where

the state courts did not appoint counsel in the initial-review

collateral proceeding for a claim of ineffective assistance at

trial. The second is where appointed counsel in the initialreview collateral proceeding, where the claim should have

been raised, was ineffective under the standards of

Strickland. To overcome the default, a prisoner must also

demonstrate that the underlying ineffective-assistance-oftrial-counsel claim is a substantial one, which is to say that

the prisoner must demonstrate that the claim has some

merit.”

(Martinez. 566 U.S. at 14)(Citing Miller-El)

Then, within Trevino v. Thaler. 569 U.S. 413 (2013). the Court

ruled that the ruling in Martinez applied to states like Texas, in which:

“[the] state procedural framework, by reason of its design

and operation, makes it highly unlikely in a typical case that

a defendant will have a meaningful opportunity to raise a

claim of ineffective assistance of trial counsel on direct

appeal.”

15 Id. at 9.

(Trevino. 569 U.S. at 429).

Further, within Gallow v. Cooper. 570 U.S. 933 (2013), a

Louisiana case, where “state habeas counsel neglected to ‘properly

presen[t]’ the petitioner’s ineffective assistance claim in state court,”16

the United States Supreme Court deemed this claim ‘indistinguishable’

[from Trevino]”17

Specifically,

within

Pennsylvania

jurisprudence,

claims

ineffectiveness are deferred to “initial-review collateral proceedings.”18

Within Commonwelath v. Grant. 813 A.3d 726 (Pa. 2002), the Court

declared that:

“We now hold that, as a general rule, a petitioner should

wait to raise claims of ineffective assistance of trial counsel

until collateral review.”

(Grant. 813 A.3d at 738).

With the Grant decision, Pennsylvania joins states like Texas,

Louisiana, and others who defer such claims to a form of “initial-review

collateral proceedings.”19, such as a writ of habeas corpus, or, in

16 Id at 933.

17 Id at 933.

18 Martinez. 566 U.S. at 14.

19 Martinez. 566 U.S. at 14.

Pennsylvania, a Petition pursuant to the Post Conviction Relief Act,

(P.C.R.A.), 42 Pa.C.S.A. § 9541. et sea.

Thereby, utilizing the stare decisis mentioned supra, along with

the standards for ineffective assistance of counsel set forth in

Strickland, supra, Mr, Hersh’s claim has arguable merit due to his

constitutional right against self incrimination guaranteed to him by

both the Fifth Amendment of the United States Constitution and

Article 1 § 9 of the Pennsylvania Constitution. Along with his right to

adequate, effective counsel protected by both the Article 1 § 9 of the

Pennsylvania Constitution and the Sixth Amendment of the United

States Constitution was violated when Mr. Bladen failed to suppress

the involuntary confession, prior to trial, call an expert toxicology

witness at a suppression hearing, or call an expert toxicology witness at

trial to support the claims of Mr. Hersh.

Mr. Hersh was clearly prejudiced by the fact that Mr. Bladen did

not properly suppress the unwilling, unknowing, and involuntary

confession, as the conviction was primarily supported by said

confession. Mr. Bladen’s blatant inaction deprived Mr. Hersh of a truly

impartial tribunal, which without a written admission of guilt/

confession obviously would have significantly modified the outcome of

the proceedings, as Mr. Hersh may never have been charged with a

crime, or if charged been found guilty of a crime by a jury of his peers.

Mr. Hersh was additionally prejudiced as the United States

District Court, along with the United States Court of Appeals failed in

their “[duty] ‘to examine the entire record and make an independent

determination of the ultimate issue of voluntariness [of the alleged

confession made under the intoxication of Ativan]’”20

It is clear from the argument, supra, that Mr. Hersh satisfies the

requirements of Martinez, permitting the procedural default to be

excused in the instant matter. Furthermore, Mr. Hersh has “sho[wn]

that reasonable jurists would debate whether the [initial] petition

should have been resolved in a different manner [based upon the

application of Martinez which ]...

encouragement to proceed further.’”21

20 Beckwith. 425 US at 348

[was]

‘adequate to deserve

Ground II. Do flawed credibility determinations of a State Court

permanently insulate the State Court’s findings from Federal Court

review where objective evidence within the certified record obviously

contradicts the credibility determinations made by the State Court?

Within

this

Honorable

Court’s

decision

in Anderson

Bessemer City. 470 U.S. 564 (1985) the Court determined that:

“When findings are based on determinations regarding the

credibility of witnesses, Rule 52(a) demands even greater

deference to the trial court's findings; for only the trial judge

can be aware of the variations in demeanor and tone of voice

that bear so heavily on the listener's understanding of and

belief in what is said... This is not to suggest that the trial

judge may insulate his findings from review by

denominating them credibility determinations, for factors

other than demeanor and inflection go into the decision

whether or not to believe a witness. Documents or objective

evidence may contradict the witness' story; or the story itself

may be so internally inconsistent or implausible on its face

that a reasonable fact[-]finder would not credit it. Where

such factors are present, the court of appeals may well find

clear error even in a finding purportedly based on a

credibility determination... But when a trial judge's

finding is based on his decision to credit the testimony

of one of two or more witnesses, each of whom has told

a coherent and facially plausible story that is not

contradicted by extrinsic evidence, that finding, if not

internally inconsistent, can virtually never be clear

error”

(Anderson. 470 U.S. at 575)(emphasis added) (citing

Wainwright v Witt. 469 US . (1985) and United States v

United States Gypsum Co.. 68 S Ct 525 (1948)).

21 Slack. 529 U.S. at 484

However, in direct violation of Anderson, supra, the prior Courts

of the Federal jurisdiction have prevented review based upon flawed

credibility determinations.

It is true that “[Cjourts must always be sensitive to the problems

of making credibility determination on the cold record,22 [however],

“[the] Constitution leaves it to [the] jury, not the judge, to evaluate the

credibility of witnesses in deciding a criminal defendant’s guilt or

innocence. ”23

In such a context, several Circuit Courts of the United States

contemplated that:

“[T]he language of § 2254(d)(2) and § 2254(e)(1) implies an

important distinction: $ 2254(d)(2)’s reasonableness

determination turns on a consideration of if the totality of

the ‘evidence presented in the state-court proceeding,’ while

§ 2254(e)(1) contemplates a challenge to the state court’s

individual factual determinations, including a challenge

based wholly or in part on evidence outside the state trial

record.” We therefore read § 2254(d)(2) and § 2254(e)(1)

together as addressing two somewhat different inquiries.

The fundamental prerequisite to granting the writ on factual

grounds is consideration of the evidence relied upon in the

state court proceeding. Section 2254(d)(2) mandates the

federal habeas court to assess whether the state court’s

determination was reasonable or unreasonable given that

evidence. If the state court’s decision based on such a

22 United States v. Raddatz. 447 U.S. 667. 669 (1980).

23 Ramonez v. Berghuis. 490 F.3d 482. 490 (6th Cir. 2007).

determination is unreasonable in light of the evidence

presented in the state court proceeding, habeas relief is

warranted. Within this overarching standard, of course, a

petitioner may attack specific factual determinations that

were made by the state court, and that are subsidiary to the

ultimate decision. Here, section 2254(e)(1) comes into play,

instructing that the state court’s determination must be

afforded a presumption of correctness that the petitioner can

rebut only by clear and convincing evidence.”24

In the matter sub judice, the testimony at issue was determined

by a judicial officer acting as the fact-finder, and not a jury, yet, “[w]hen

a P.C.R.A. hearing is held and the P.C.R.A. Court makes findings of

fact, we expect the P.C.R.A. Court to make necessary credibility

determinations.”25

Within Pennsylvania jurisprudence, a credibility determination of

a judicial officer as a fact-finder typically is given “great deference” by

appellate courts. However, within Johnson, the Court challenged this,

when it determined:

“[T]hat assessing credibility for purposes of Strickland

prejudice is not necessarily the same thing as assessing

credibility at trial... Logically, however, credibility

assessments in the Strickland context, are not absolutes,

but must be made with an eye to the governing standard of a

24 Lambert v. Blackwell. 387 F.3d 210. 236 (3rd Cir. 2004)(citing Tavlor v.

Maddox. 366 F.3d 992. 999-1000 (9th Cir. 2004): and Valdez v. Cockrell. 274

F.3d 941. 951 n. 17 (5th Cir. 2001)).

25 Commonwealth v. Johnson. 966 A.2d 523 (2009).

“reasonable probability” that the outcome of the trial would

have been different.”

(Johnson. 966 A.2d at 541).

Strickland defines a “reasonable probability” as “a probability

sufficient to making a finding of prejudice and to undermine confidence

in an outcome.”26

The United States District Court and the Court of Appeals for the

Third

Circuit

granted

“great

deference”27

the

credibility

determinations of the P.C.R.A. Court based strictly on a statement of

incredibility from the Court, and a statement of credibility on that of

Trial Counsel, Warren P. Bladen, Esq., (Mr. Bladen).

This “deference”28 prevented further appellate review of the

matter on credibility determinations.

Specifically, those witnesses

presented by Mr. Hersh were deemed by the P.C.R.A. Court to be

incredible.

26 Strickland. 466 U.S. at 693.

27 “[A] decision adjudicated on the merits in a state court and based on a factual

determination will not be overturned on factual grounds unless objectively

unreasonable in light of the evidence presented in the state court proceeding... Yet,

‘deference does not imply abandonment or abdication of judicial review...’ In other

words, ‘deference does not by definition preclude relief.’ Thus a federal habeas court

can ‘disagree with a state court’s credibility determination.’” (Accord Miller-El v.

Cockrell. 537 U.S. 322. 340 (2003) and Wiggins v. Smith. 539 U.S. 510 (2003)).

28 Miller-El. 537 U.S. at 340).

Although, within Ramonez, the Sixth Circuit Court of Appeals

found “a Strickland v. Washington. 466 U.S. 668 (1984) violation

where counsel failed to present three favorable witnesses even though

the state post-conviction court said that one witness was ‘not

particularly helpful’ and another was incredible.”29

Instantly, however, the determinations of the P.C.R.A. Court are

not sufficiently supported by the certified record. In-fact, testimony of

Mr. Bladen states that: “[Mr. Hersh] indicated that the witness was

giving a thumbs up every time she answered a question. I believe I saw

that on at least one occasion. That’s about all he indicated...”30

Mr. Bladen’s determination within testimony undermines the very

foundation of the credibility assessment of the P.C.R.A. Court.

Mr.

Hersh’s witnesses, not only testified to this very factor of the witness

giving a “thumbs up” each time a question was asked by the

prosecution, but further eludes to the fact that the witness was

extremely tainted by “the implantation of false memories or the

distortion of real memories ... [through] interested adults”31 Yet their

29 Ramonez. 490 F.3d at 485-86.

30 N.T., Transcripts of Proceeding of PCRA Hearing, June 17, 2013 at 8:45 a.m.,

37:21-25, 38:1-3, 38:25, 39:l-2)(emphasis added).

31 Commonwealth v. Delbridge. 855 A.2d 27. 39 (2003).

testimony is deemed to be “incredible” by the P.C.R.A. Court, even when

corroborated by Mr. Bladen’s “credible”32 testimony.

The P.C.R.A. Court deeming Mr. Hersh, and the additional

witnesses as incredible is a legal impossibility, if Mr. Bladen’s

testimony is in-fact found to be credible. The certified record also does

not support this credibility determination, instead it supports the

position of Mr. Hersh. Mr. Bladen admits through testimony that Mr.

Hersh had indicated seeing “thumbs up” hand signals from both the

witness “every time she answered a question.”33

This testimony is

corroborated continuously throughout testimony of a menagerie of

sequestered witnesses. Yet, this flawed determination of the P.C.R.A.

Court is continuously determined to be fact throughout appellate

proceedings allowing Mr. Hersh to be denied proper appellate review.

Instantly, Mr. Bladen had a duty to Mr. Hersh, to eliminate the

“interested adults” when he had failed to object, orally motion for

mistrial, request a curative jury instruction or other applicable remedy

when a “thumbs up” hand signal was given from the testifying victim to

32 The P.C.R.A. Court determined that Mr. Bladen as “Counsel[,] credibly

testified...” throughout the P.C.R.A. evidentiary hearing. (N.T., P.C.R.A. Court

Opinion, August 6, 2013, 5:12).

the victims mother in the gallery, then back to the testifying victim.

Such was clearly a violation of established norms of attorney conduct,

along with tribunal decency.

Had the victim’s testimony been deemed inadmissible or in the

most severe of circumstances, a mistrial declared based upon the

uncouth conduct of the victim and members of the gallery, the

confidence in the tribunal would have been severely undermined,

meeting the standards of Strickland.

Instead, the Pennsylvania Courts, along with the United States

District Court unreasonably applied the proper credibility standards

bolstering the actions of those “interested adults” from the gallery who

sought to undermine the fundamental fairness of a tribunal.

It is clear by the argument supra, “that reasonable jurists would

debate whether the [Mr. Hersh’s] petition should have been resolved in

a different manner [when] the issues presented were ‘adequate to

deserve

encouragement to proceed further,”’34 based upon the

33 N.T., Transcripts of Proceeding of PCRA Hearing, June 17, 2013 at 8:45 a.m.,

37:21-25, 38:1-3, 38:25, 39:1-2).

34 Slack. 529 U.S. at 484.

“unreasonable

application”

the

State

Court’s

determination that is not supported by the certified record.

credibility

CONCLUSION

As briefed supra, the United States District Court of the Middle

District of Pennsylvania along with the United States Court of Appeals

for the Third Circuit erred in denying Mr. Hersh’s Petition for Writ of

Habeas Corpus and Certificate of Appealability due to the fact the

issues presented supra “sho[w] that [a] reasonable jurist[ ] would debate

whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were

‘adequate to deserve encouragement to proceed further.’”35

WHEREFORE, for the reasons, supra, Mr. Andrew Darvin

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

Honorable Court vacate the judgment of sentence by the Adams County

Court of Common Pleas, and/or any other prudent relief this Honorable

Court deems appropriate.

35 Slack. 529 U.S. at 484

Respectfully Submitted,

Date: August 12, 2020

(signature)

Andrew Darvin Hersh, JW2630

Pro Se, Petitioner

S.C.I. Rockview

1 Rockview Place

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.