Petition for Writ of Certiorari — Gerald M. Calmese, Petitioner v. Arizona

No.

03

C-O

IN THE

SUPREME COURT OF THE UNITED STATES

Gerald M. Calmese, Petitioner

vs.

Supre

State of Arizona, Respondent

PETITION FOR WRIT OF CERTIORARI

4iTus-

JUL 2 8 2021

OFRCEOF

AND APPEAL OF STATE COURT OPINION

Maricopa County Superior Court No. CR 2010-008080-001

Arizona Appeals Court No. 1 CA-CR 12-0328 /1 CA-SA 17-0149

Arizona Supreme Court No. M-21-0029 / M-21-0041

Gerald M Calmese

#074142

ASPC-Tucson-Winchester Unit

P O Box 24401

A

Tuscon, Az 85734

/

i

Jt

LX

erald M. Calmese Pro Se

RECEIVED

in 2021

SUPBEMEcSinrS™

imCLERK

Questions Presented for Review

Is there legally sufficient evidence to establish beyond a reasonable doubt

the required element for fraudulent schemes for which the petitioner was

convicted?

Was the petitioner's due process and double jeopardy violated when the

Superior court imposed an unlawful double punishment by sentencing

petitioner to a consecutive term on the Theft of a Credit Card by

Fraudulent Means?

The petitioner's indictment was insufficient as a matter of law, it failed to

allege the essentials elements that could not be cured by the trial court, or

prosecution by amendment or through jury instructions.

Did the state present insufficient indictment of Multiplicity?

I

Parties To The Proceedings

Gerald M. Calmese

#074142 Petitioner

ASPC-Tucson-Winchester Unit

P.O. Box 24401 / 10002 S. Wilmot Rd

Tucson, Arizona 85734

Attorney for Respondent

United States Mark Bronovich

Arizona Attorney General

Solicitor General

Department ofjustice

Washington, D.C 20530

i i. I V

TABLE OF CONTENTS

Pages

Questions Presented For Review.

i

Parties To The Proceedings

II.IV

v

Index Of Authorities

Citations of Opinion And Order In Case

1

Jurisdiction Statement,

Constitutional Provision and Statute Involved

1

2

Statement Of Case

3

A. Course of Proceedings Was Before The Arizona Supreme

Court...................................................

4

B. The Arizona Supreme Court Has Decided A Federal

Question in Direct Conflict With The Applicable Decision

Of This Court....................................

,4

Arguments Amplifying Reason For Writ..........................................

I. Is there legally sufficient evidence to establish beyond a reasonable

doubt the required element for fraudulent schemes for which

petitioner was convicted?..................................

II. Was the petitioner's due process and double jeopardy violated

when the Superior court imposed an unlawful double punishment

by sentencing the petitioner to a consecutive term on the theft of a

credit card by fraudulent means.................................

III. Petitioner indictment was insufficient as a matter of law, it failed

to allege the essential elements that could not be cured by the

the trial court, or prosecutor by amendment or through jury

instructions. Did the state present insufficient indictment of

Multiplicity?..............................................

Conclusion

Proof-Of-Serviee.

Appendix To Petition

13

14

15

INDEX OF AUTHORITIES

U.S. v. Anderson, 877 F.3d 1508, 1520 ( 11th Cir 1989 ).........................

United States v. Beall, 126 F.Supp 363 ( N.D.Cal 1954 )..........................

Blockburger v. United States, 284 U.S. 299, 301 ( 1932 )..........................

U.S. v Bonilla, 578 F.3d 1233, 1241-44 (11th. Cir 2004 )......................

State v. Bridge forth, 156 Ariz. 60, 64 ( 1988 )...............................................

Bunkley v. Florida, 538 U.S. 835, 155, L.Ed 1046, 123 S.Ct(2020).......

State v.Chabella-Hinojosa, 192 Ariz 360, 362-63 10-13 965 F.2d 94, 96-97 (App

2014)........................................................................................

Costello v.United States,350 U.S. 359,362 76 S.Ct 406,408,100 L.Ed 397

United States v. Cruikshank, 92 U.S 542-558 L.Ed 588.............................

State v. Davolt, 207 Ariz 191 (App 2000 ).................................................

United States v. Douglas, 780 F.2d 1472,1477 (11th Cir 1986)...........

U.S. v. Dowdell, 608 F.3d 546 ( CA 9 2010 )..............................................

United States v. Fiore, 821 F.2d 127, 130 ( 2d Cir 1987 )........................

State v. Haas, 138 Ariz. 413, 423, ( 1983 ).................................................

State v. Hauck, 190 Neb. 534, 209, N.W. 2d 580, 584 ( 1973 ).................

Jeffers v. United States, 392 F.2d 749, 752-53 ( 9th Cir 1968 )................

State v. Johnson, 179 Ariz. 375 ( 1994 ).......................................................

United States v. King, 587 F.2d 956, 963 ( 9th Cir 1978 )............................

State v. Molina, 211 Ariz. 130 ( App 2005 )....................................................

U.S. v Naas, 775 F.2d 1133 ( CA 8 1985 )......................................................

U.S v. O' Donnell, 608 F.3d 546 (Ca 1 2010 ).................................................

Parr v.United States, 363 U.S.370, 393-95 80 S.Ct 1171,1185 4 L.Ed 2d 1277(1960)

State v. Pelts, 242 Ariz. 23, 278, P.3d 12T5 1219 (2017).

■..........................

United States v. Pinto, 548 F.Supp 236, 245 ( E.D. Pa 1982 )

State v. Powers, 200 Ariz. 123 (App 2001 )...........................

V/

State v. Proctor, 196 Ariz. 577, 2 P.3d 647 Ariz. App. Div. 1998

United States v. Reed, 639 F.2d 896, 904 ( 2d Cir 1981 )........

State v. Rios, 246 Kan. 517, 792, P.2d 1065,1070 ( 1990 )

Russell v. United States, 363 U.S. 749, 771,82 S.Ct 1038, 1051 8 L.Ed 240(1962)

State v. Schneider, 141 Ariz. 441, 445, 715 P.2d 297, 300 (App 1985 )...

Schurman v. United States, 658 F.2d 389, 391 ( 5th Cir 1981 )............

State v Smith, 121 Ariz. 106, 588, P.2d 848 (App 1978 )......... ......

State v. Stewart, 118 Ariz. 281,283, (App 1978 )...........................

State v. Suarez, 137 Ariz. 368, 378 ( 1983 )....................................

Illinois v. Vitals, 447 U.S. 410, 421, 100 S.Ct 2 260, 65 L.Ed 2d (1980).

State v. Via, 146 Ariz. 108, 116, 704 P.2d 238, 249 ( 1985 ).............

State v. Watson, 459 P.3d 120 (2020 )............................

Williams v. United States, 265 F.2d 214, 218 ( 9 the Cir 1959 ).......

/

Petitioner, Gerald M. Calmese prays that this honorable court will issue a writ of

certiorari to reviewthe judgement and opinion of the Supreme Court of Arizona

entered in the above proceedings on May 19, 2021, and June 28, 2021.

CITATIONS OFOPINION AND ORDERS IN CASE

The Petitioner submitted a Special Action of the Arizona Appeals Courts opinion to

the Supreme Court of Arizona is attached hereto as appendix A

The opinion and order of the Arizona Supreme Court is unpublished and attached

hereto as appendix B

The Petitioner submitted a Special Action to the Arizona Supreme Court is

attached hereto as appendix C

The opinion and order of the Arizona Supreme Court is unpublished and attached

hereto as appendix D

JURISDICTION STATEMENT

The judgement of the Arizona Supreme Court was entered on May 19,2021, and

June 28, 2021. The jurisdiction of this court is invoked under U.S.C.S. Const. Art. Ill

§ 2, C12. " Supreme Court has appellate jurisdiction both a to law and fact."

Ableman v. Booth, 662 U.S. 506, 16 L.Ed. 169, 1858 U.S. 686(1859). "Supreme

Court in exercise of its appellate jurisdiction has power not only to correct errors

in judgement under review but to make such dispositions of case as justice

requires." Honeyman v. Hanan 300 U.S. 14, 57 S.ct 350, 81 L.Ed 476 (1937).

\

STATE COURTS

" Supreme Court has appellate jurisdiction to review and correct judgement of

state court..." Mathew v. Zane, 8 U.S 382, 2 LEd. 654, 1807 U.S 396 (1807)

Supreme Court has appellate jurisdiction over judgement of state courts. Cohen v.

Virginia, 19 U.S 264, 5 LEd. 257, 1821 U.S 362 (1821).

"United States Supreme court has jurisdiction to review state criminal conviction

raising issue issue of indigent defendant's constitutional right..." have been

violated. Ake v. Oklahoma, 470 U.S. 68,105 S.ct 1087, 84 L.Ed. 2d 53,1985 U.S. 52

(1985).

CONSTITUTIONAL PROVISIONAL AND STATUTES INVOLVED

1. The Fifth Amendment of the United States Constitution Provides No person shall

be... deprived of life, liberty, or property without due process of law nor shall be

compelled in any criminal case to be a witness against himself and protection

Against Double jeopardy/ Punishment.

2. The Sixth Amendment to the United States Constitution Provides: In all

prosecutions the accused shall enjoy the right to... by an impartial jury of the

state... and to be informed of the nature and cause of the accusation, and to have

the Assistance of Counsel for his defense.

3. The Fourteenth Amendment of the United States Constitution provides:. ..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 law.

L

STATEMENT OF THE CASE

On December 14,2010, a Maricopa County Grandjury indicted Petitioner,

Gerald M. Calmese, one count of fraudulent schemes and artifices (count I), theft

of credit card by fraudulent means (count III, IV, VI, VII, VII I) and aggravated taking

the identity of another (count V). R.O.A. at 1. The State alleged petitioner

committed the offenses (which involved six victims) on or between February 1,

2009, and September 27, 2010, for pecuniary gain and in an especially cruel and

heinous manner. Id. RT 01-26-2010 pg.18. After an unsuccessful settlement

conference, Petitioner proceeded to trial on January 18, 2012.

On January 26, 2012, the jury returned guilty verdicts on counts I, III-VIII and a hung

on count II. Id., pg. 15,16. Petitioner stipulated to the State's aggravating factors,

pecuniary gain, and admitted he had five prior convictions. Id., pg. 4,19. On May

09,2012, the judge sentenced the petitioner to serve a presumptive sentence of

twenty yearson countl,the maximum ofsixyearson count Ml, IV, VI,andVIII,anda

presumptive term o fifteen years imprisonment on countV. RT 05-09-2012 pg, 2628. The judge ordered counts I and V to run concurrently with each other and with

consecutive terms imposed in counts III, IV, VII, and VIII. Id., pg, 28.

Petitioner filed a timely Notice of Appeal. This Court has jurisdiction to

consider review under USCS Const. Art. Ill § 2, C12.

■3

COURSE OF PROCEEDINGS IN THE CASE BEFORE

THIS COURT

On November 21,2012, petitioner filed an opening brief on his appeal.

On June 15, 2015, petitioner filed rule 32 for post-conviction relief.

On February 18,2021 petitioner filed a special Action with the Arizona Supreme

Court.

On May 19, 2021 Arizona Supreme Court ordered that the petition for special

action be dismissed.

On June, 04, 2021, petitioner filed a Special Action with the Arizona Supreme Court.

On June 28, 2021, Arizona Supreme Court ordered that the petition for special

action be dismissed.

4

ARGUMENTS PRESENTED

I. Was there legally sufficient evidence to establish beyond a

reasonable doubt the required elements for the fraudulent

Schemes for which the petitioner was convicted?

The petitioner contends the due process clause of the Fifth Amendment, the

prosecution is required to prove beyond a reasonable doubt every element of the crime with

which the petitioner was charged. The trial court is required to enter a judgment of acquittal

before the verdict if there is no substantial evidence to warrant a conviction. State v. Molina,

211 Ariz. 130 (App. 2005). Evidence is substantial if reasonable persons could accept it as

adequate and sufficient to support a conclusion of the petitioner's guilt beyond a reasonable

doubt. State v. Davolt, 207 Ariz. 191 (App. 2000).

The court should have found that there was insufficient evidence presented in the

fraudulent schemes and artifices count pursuant to the Arizona Supreme Court’s holding in

State v. Johnson, 179 Ariz. 375 (1994), because, like Johnson, the petitioner did not obtain a

benefit by means of a false pretense, representation or promise.

A.R.S. § 13-2310 provides that a person violates that statute if the person, " pursuant

to a scheme or artifice to defraud, knowingly obtains any benefit by means of false or

fraudulent pretenses, representation, promise, or material omissions ." To establish a violation

of § 13-2310, the state must first prove the existence of a scheme to defraud, for example, "

some ' plan, device, or trick' to perpetrate a fraud." State v Haas, 138 Ariz. 413, 423 (1983),

quoting State v. Stewart, 118 Ariz. 281, 283 (App. 1978). It must then prove that the petitioner,

knowing the purpose of the scheme, obtained a benefit pursuant to the scheme by means of

false or fraudulent pretenses. State v. Bridgeforth, 156 Ariz. 60, 64 (1988) State v Watson, 459

P.3d 120, (2020). The criminal conduct punishable under §13-2310 is the scheme to defraud,

not solely an act committed in furtherance of the scheme. See State v. Suarez, 137 Ariz. 368,

373 (1983). Suarez also illustrates that Arizona's fraudulent schemes and artifices statute

criminalizes the scheme, itself, not the individual acts, events, or transactions that occur, or

benefits that are received, pursuant to the scheme. See State v. Smith, 121 Ariz. 106, 588 P. 2d

848 (App. 1978).

False pretense is the key element of fraud. State v. Rios, 246 Kan. 517, 792 P.2d 1065,

1070 (1990) (" reliance upon the false pretense which includes the owner to part with his

property is generally considered to be an essential element of the crime., throughout this

country"), false pretense, created through words of omission, is the actthat separates fraud

from routine theft, the statute's language means that the false pretense must actually cause

the victim to rely upon and, as a result, give property or money to the petitioner, see id. At

1072 State v. Hauck, 190 Neb. 534, 209 N. W. 2d 580, 584 (1973). Her, petitioner's romantic

relationships and false names did not induce his victims to willingly part with their credit cards.

The other two elements of fraud are satisfied in almost every theft because theft generally

occurs pursuant to a plan and result in the perpetrator receiving a benefit.

Haas contrasted the fraud statute with the theft statute, A.R.S. § 13-1802, and focused

primarily on § 13-1802 (A) (2), which codifies common-law embezzlement. There is a difference

between fraud and theft, although breaching a trust relationship may lead to fraud, it does not

do so unless the distinguishing element of fraud is present, see Parr v. United States, 363 U.S.

370, 393-394, 80 S.Ct. 1171, 1185 4 L.Ed. 2d 1277 (1960) ( holding that commission of

embezzlement did not establish mail fraud conviction) see also the United States v. Beall, 126

F.Supp. 363 (N.D.Cal. 1954) (treasurer of a charitable agency diverted contributions for his

own use and attempt o cover up the crime by claiming the funds had been turned over to

another employee held that" the mail fraud statute was not meant to apply to persons who

violate a position of trust and confidence by embezzling funds that come into their hand...

lawfully.... ") Id. at 366.

In Haas, the Supreme Court noted the fraudulent schemes and artifices statute must be

broad enough to " cover all of the varieties made possible by boundless human ingenuity." 138

Ariz. 424,675 P.2d at 684, including the use of " deceitful statements or half-truths or even the

concealment of material facts." Id at 418, 675, P.2d at 678. Thus, it concludes, "[tjhereisa

misrepresentation whenever the combination of what is said, what is half-said and what is not

said results in misrepresenting the nature of the transaction." Id at 424, 675, P.2d at 684. This

was the scenario instate v. Proctor, 196 Ariz. 577, 2 P.3d 647 Ariz. App. Div2,1998, the case

upon which the trial court ultimately relied. Through a careful strategy of representations,

promises, and omissions, appellants misled sellers as to the nature of the related property

transactions.

The issue here is whether the petitioner obtained benefit by means of his false pretense?

Although, petitioner pretense need not be by affirmative misrepresentation, it must be by

more than the implied promise alleged by the state. State v. Watson, 459 P.3d 120 (2000)

State v. Haas, 138 Ariz. at 419,675 P.2d at 679 State v. Johnson, at 424, 675 P.2d at 684.

The betrayal of an implicit belief in the honesty of one's friend or employee, alone, does not

support the misrepresentation element of fraud. See United States v. Pinto, 548 F.Supp. 236,

245 (E.D.pa 1982) (" the breach of an employee's fiduciary duty, without more, does not

constitute [fraud]"). Hence, though the petitioner's victims may have felt betrayed by the

petitioner s romantic advances, these overtures alone did not support the misrepresentation

element of fraud. Given the explicit wording of A.R.S § 13-2310 (A), the state must prove

specific facts that the petitioner obtained some benefit " by means of " a specific false picture

or pretense. Haas, 138 Ariz. at 423, 675 P.2d at 683.

Here. Petitioner arguably received two different benefits: the credit cards that permitted

petitioner to obtain various purchases without the owner’s consent, the second the items

themselves. The question for this court's consideration is whether the petitioner's actions

misled his victims in some way to induce them to give the petitioner the credit cards and/or

the items the petitioner purchased. The state produced no such evidence. In fact, in several

instances, the victims testified that the petitioner fostered a relationship with them through

online

chatting " sometimes for months before actually meeting in person. RT 03/07/2012

pg. 10. Further, that petitioner used various aliases with his victims had nothing to do with

their willingness to give petitioner their credit cards, in fa ct, some of the victims loaned the

petitioner cash based on his representations that the petitioner suffered a temporary financial

hardship that had nothing to do with the petitioner's false identity. Further, the state offered

no evidence that the petitioner lacked conviction in his relationships with the woman, or that

he was insincere in his communications with each other online.

In short, the petitioner's

romantic interests had nothing to do with his later thefts of the victim's credit cards.

The State failed to prove a fraudulent scheme and therefore under the due

process clause of the Fifth Amendment, the State is required to prove beyond a

reasonable doubt every element of the crime with which the Petitioner is charged.

See Sullivan v. La. 508 U.S. 275,278 (1993). The standard protects the Petitioner's

liberty interest. See Winship, 397 U.S. at 363.

Second, it protects from stigma of conviction. Id Third, it encourages community

confidence in criminal law by giving "concrete substance" to the presumption of

innocence, Id at 363-64. The reasonable doubt requirements apples to elements

that distinguish a more serious crime from a less serious one, as well as those

elements that distinguish criminal from noncriminal conduct.

The criminal conduct punishable under § 13-2310 is the scheme to defraud,

not any act committed in furtherance of the scheme. See State v. Suarez, 137 Ariz.

368, 373,670 P.2d 1192,1197 (App. 1983). A scheme to defraud may involve

numerous acts and multiple victims, See id. (" A scheme to defraud thus implies a

plan, and numerous acts may be committed in furtherance of that plan.") State v.

Schneider, 141 Ariz. 441,445, 715 P.2d 297,301 (App 1985) (Single scheme involving forty

victims).

II. Was the Petitioner's due process and double jeopardy

violated when the Superior court imposed an unlawful

double punishment by sentencing Petitioner to a

consecutive term on the Theft of a Credit Card by

Fraudulent Means?

The Double Jeopardy Clause of the Fifth Amendment states that no person shall" be

subject for the same offense to be twice put in jeopardy of life or limb." The petitioner was

sentenced to the maximum of six years on counts III, IV, VI, VII, VIII theft of a credit card by

fraudulent means. The double jeopardy clause of the United States and Arizona Constitutions

protects criminal defendants from multiple prosecutions and punishments for the same

offense. U.S Const, amend. V Ariz. Const, art. II §10. See. U.S v. Bonilla, 579 F.3d 1233, 1241-44

(11 Cir. 2009) State v. Eagle, 196 Ariz. 188,190, 5, 994 P.2d 395, 397 (2009) (federal and

Arizona double jeopardy clause generally provide the same protection). See Blockburger v.

United States, 284 U.S. 299, 301 (1932). The greater and lesser-included offenses are

considered the " same offense " the double jeopardy clause forbids the imposition of a

separate punishment for a lesser crime when a defendant has been convicted and sentenced

for the greater offense, see Illinois v. Vitale, 447 U.S. 410, 421,100 S.Ct 2260 65 L.Ed 2d

(1980) State v. Chabolla-Hinojosa, 192 Ariz. 360, 362-63, 10-13, 965 P.2d 94, 96-97 (App.

2014).

Statutorily, as in the case at hand, the prohibition of multiple punishments for the same act

is codified in A.R.S §13-116, which provides: " An actor admission which is made punishable in

different ways by different sections of the law may be punished under both, but in no event

may sentence be other than concurrent." See U.S v. Naas, 775 F.2d 1133 (CA5 1985) "[ absent

clear language to the contrary, it is presumed that the sentence imposed on more than one

offense at the same time, or at different times, will run concurrently " Schurmann v. United

States, 658 F.2d 389, 391 (5th Cir. 1981) [.]

Under the facts in this case, the fraudulent schemes and artifices offense was the ultimate

charge concerning each victim the underlying theft of a credit card, stem directly from the

petitioner's scheme to obtain the pecuniary gain from the victims' by cretingthe false

pretense. The State, in the exercise of its broad charging discretion, chose to charge the

petitioner with a single count of fraudulent schemes that encompassed every theft of a credit

card petitioner committed. State v. Peltz, 242 Ariz. 23, 278, P.3d 1215, 1219 (2017) State v.

Via, 146, Ariz. 108, 116, 704, P.2d 238, 246 (1985).

Moreover, the state's claim that obtaining "any benefit" is chargeable as a separate

offense simply cannot be squared with the analysis set forth in Via, Suare and Schneider. In

Via, the Arizona Supreme Court did not find a separate scheme each time Via obtained

"any

benefit' by using either of the stolen credit cards. 146 Ariz. at 116. In Suarez, the court did

not

find a separate scheme each time Suarez obtained "any benefit" from Lake Havasu City during

his "one scheme to defraud" the city. 137 Ariz. at 373 Finally, the court did not find

a separate

scheme each time Schneider obtained "any benefit" from any of the multiple investors

involved in his scheme. 148 Ariz. at 446-47. Even though there are multiple victims, the

testimony that the acts were committed in the

same way, act, or manner solidifies that they

were based on the same scheme, so regardless if petitioner took credit cards, or cash

, cars,

the overall scheme was to defraud regardless of the benefit.

The state must now subtract the evidence necessary to satisfy the elements of the

ultimate charge and determine whether the remaining evidence and meet the statutory

elements of theft of a credit card, which proves that Petitioner knowingly controlled property

of another with the intent to deprive the other person of such property, A.R.S. § 13-1802 (A)

(1). Considering the elements of each offense and the facts surrounding both the theft of a

credit cards and fraudulent schemes and artifice crimes, there is insufficient evidence to

convict the petitioner of theft of credit card once the evidence necessary to convict him of

fraudulent schemes and artifices is subtracted. Under the facts of this case, the petitioner

obtained control of the victims' credit cards at the same moment he received pecuniary gain

through his false pretense and misrepresentation. Thus, because the state would be unable to

prove theft of a credit card without the evidence required for fraudulent schemes and artifice,

the first prong of Gordon test. See State v. Watson, 459 Ariz. P.3d 120 (2020). In this case, the

second and third prong of the Gordon test did not satisfy. Watson could not have obtained

the funds from the victims' account using fraudulent schemes and artifices without

simultaneously committing theft. Gordon, 161, Ariz. at 315, 778, P.2d at 1211.

As for the third prong, the harm to the victims caused by the thefts—that they

were

deprived of their property--is the same harm they suffered as a result of the fraudulent

schemes and artifices. Based on how the state charged the offense in this case, the petitioner

committed a single crime resulting in the commission of a series of crimes, the

consecutive

term for theft of credit card charge was, therefore, unlawful double punishment.

Under

Watson, the review of the sentence proceedings left the Appeals court unable "to

determine... that the trial court would have imposed the same sentence if it had been

aware

that consecutive sentence were not available," with that said the appeals court vacated all of

Watson's felony sentence and remanded for resentencing. Petitioner is asking for the

consideration in his case.

same

ill. Petitioner's indictment was insufficient as a

matter of law, it failed to allege the essential

elements that could not be cured by the trial

court, or the prosecutor by amendment or

through jury instructions. Did the State present

insufficient indictment of multiplicity?

The Supreme Court has stated, the very purpose of the requirement that a person be

indicted by the grand jury is to limit his jeopardy to offenses charged by a group of his fellow

citizens acting independently of either prosecuting attorney or judge. The indictment filed on

December 14, 2010, failed to allege all victims in count 1 which is one of the main essentials for

the crime for which the petitioner is charged. Failure to do so constitutes a fatal defect: United

States v. King, 587, F.2d 956,963, (9th Cir 1978) Russell v. United States, 369 U.S. 749, 771, 82

S.Ct 1038,1051, 8L.ed 240 (1962) Costello v. United States, 350 U.S. 359, 362 76 S.Ct 406, 407,

100 L.ed 397, see eq, Hamling v. United States.

On or between the 1st day of March 2011, the petitioner filed a motion to amend the

indictment. The motion was denied. On October 18, 2011, the state filed a motion to amend

the indictment for typographical error (Appendix B). On January 18, 2021, during the trial

setting hearing, the court inquired about the motion to amend the indictment, the judge

Stated he would like to see the grand jury transcripts (Appendix C). the motion was never

ruled on by the judge. U.S v. Dowdell, 595 F.3d 50 (CA1 2010).

The petitioner argues that it is the duty of both the trial court and prosecutor to

review

the indictment for defects to see if it will hold a conviction. If not, resubmit the indictment

back to the grand jury. The indictment must be specific U.S. v O'Donnell. 608 F,3d 546 (CA9

2010)

United States v. Cruikshank, 92 U.S. 542-558 L.ed 588. To allow the state prosecutor to make a

subsequent guess as to what was in the mind of the grand jury at the time they returned the

indictment would deprive the petitioner of basic protection that the grand jury was designed

to secure, because the petitioner could then be convicted on the basis of facts not found

by, and perhaps not even presented to the grand jury that indicted the petitioner, see, Jeffers

v. United States, 392 F.2d 749, 752-53, (9Cir 1968) Russell 369 U.S. at 770,8 S.Ct 1038.

Williams v. United States, 265 F.2d 214, 218, (9th Cir 1959) Bunkley v. Florida, 538 U.S. 835,

155 L.ed. 2. d 1046 123 S.Ct 2020.

(A). The guard against" Multiplicity " see United States v. Douglas, 780 F.2d 1472,

1477 (9th Cir 1986). Multiplitous indictments are generally improper, they may prejudice the

defendant or result in multiple punishments for the same offense, which violates the

petitioner's constitutional right to be free from double jeopardy. U.S. Const, amends. V, XIV

Ariz, Const, art II § 10 State v. Powers, 200 Ariz. 123 (App. 2001) aff'd, 200 Ariz. 363 (2001) U.S.

v. Kerley, 544 F.3d 172 178-79 (2d Cir 2008) U.S. v. Bonilla, 579 F.3d 1233, 1242-43 (11th Cir

2009). Furthermore, the ban on multiplicity protects defendants' rights under the double

jeopardy clause of the Fifth Amendment. Since a defendant is for the same offense twice,

defendant is put in jeopardy whenever he/she is made to stand trial on an indictment charging

the same offense in more than one count. United States v. Reed, 639 F.2d 896, 904, (2d Cir

1981) United States v. Fiore, 821 F.2d 127,130 (2d Cir 1987). In this case here, the state failed

to test whether each charge required proof of a fact which the other does

not, and the state

used the same evidence in all charges to convict. This clearly violated the analysis under the

test announced by the Supreme Court in Blockburgerv United States, 284 U.S 299 304 (1932)

United States v. Kennedy, 726 F.2d 548. In the petitioner's case, the petitioner submits that

counts 1, 2,3, 4, 6, 7,8, of the indictment, are " Multiplitous " Note, the same action as all the

counts incorporated by reference each of the overt acts alleged. Counts 1

, 2, 3, 4, 6, 7, 8,

alleged the same evidence. U.S. v. Anderson, 872 F.2d 1508,1520 (11th Cir 1989).

In this case the only remedy for sentencing resulting from multiplicity is to vacate all

sentencing and remand for resentencing, 278 F.3d 880 (9th Cir 2002) Blockburger v. U.S

299, 304 (1932). In the petitioner's case, the state proved every element necessary to obtain a

conviction under counts 2, 3, 4,6, 7, 8. Thus all the counts are presumed to be the same

offense under Blockburger. Id. Certainly, nothing in the legislative history of the export

administration act suggests that the presumption arising under Blockburger should be ignored.

Therefore, the court errored in convicting the petitioner on the indictment multiplicity

which is an illegal sentence which is an illegal sentence and " miscarriage of justice."

2002) Blockburger v. U.S, 284 U.S 299, 304 (1932). In the petitioner's case, the state proved

every element necessary to obtain a conviction under counts 2, 3, 4, 6, 7, 8. Thus all the counts

are presumed to be the same offense under Blockburger. Id. Certainly, nothing in the

legislative history of the export administration act suggests that the presumption arising

under Blockburger should be ignored. Therefore, the court errored in convicting the petitioner

on the indictment multiplicity which is an illegal sentence which is an illegal sentence and

" miscarriage of justice.1'

There are only five types of dismissal within any court of lower equity. They are outlined

by the Federal Rules of Civil Proc. 41(a) is a voluntary dismissal. Here, the defending party must

initiate it. This requires a motion from the defending party in an action to file for lack of

prosecution on behalf of the complaining party. However, a dismissal under this venue

operates as an adjudication on the merits.

The other three dismissals are dismissals by the court, and they are as follows:

1) a dismissal for lack of jurisdiction.

2) a dismissal for improper venue.

3) for failure to join party under Ariz.R.Crim.D,19

In this case, the Petitioner's "Notice of Post-Conviction Relief" were dismissed by the

Court with no objection or motion from the State. Therefore, the dismissal cannot be

a dismissal without an adjudication on the merits.

The venue was the right venue. It has long since been held that, "The party who brings

the suit is the Master to decide what law he will rely upon, The Fair v. Kohler Dre & Specialty

Co, 288U.S.22,228U.S.25. Nor can the court claim that its ruling was based on lack of

Jurisdiction. State v. Lopez,96 Ariz. 169,393p.2d 263 (1969). And for the court to claim its

dismissal for failure to join a party under Rule 19 would be totally absurd.

With the judge mentioning the timeliness of the "Claim Notice," we can only

assume that the judge was attempting an adjudication on the merits. However, it is

evident to adjudicate and not the "Claim Notice" to blame this on ignorance, would be

To turn a blind eye to one who has attempted to deprive a U.S. citizen of his rights under

the color of the law, is a violation of 18U.S.C & 242, also known as the Klu Klux klan Act.

The courts have addressed these issues numerous times. S.C.D.T.U.S. made a clear

ruling on this situation in Eberhart v. U.S.125 (2005). Because time is in fact a defense, a court,

who issues a dismissal under the pretense of timeliness has become part of the litigation and

not the unbiases disinterested arbiter of the rights that is required from the judiciary seal of

a judge. Honorable Daniel Martin, who acting on his own will (Sua Sponte), has obstinately

seized the jurisdiction of the standing in violation of the Petitioners 1st, 6th, and 10th and

11th & 14th Amendments rights.

Also, standing in violation of Ariz.Const.Art. 2 & 11. Ariz.R. of Civil Proc, 11 &A.R.S.& 12

349

Because of the violation of the Petitioners Due Process rights to state a claim and

access to the courts, the Petitioner seeks relief of vacating his sentences and

convictions

and remand back to a trial court, for a new trial and /or for resentencing.

3) THE TRIAL COURT ERRED WHEN IT DISMISSED Calmese' Notice for Post- Conviction

For Relief for nor raising grounds for relief.

As evidence provided in the previous argument, a pending case cannot be exhausted

unless it is based on the merits. A Notice presents

no merits and cannot be dismissed on its

merits.

A Notice for Post-Conviction Relief is to notify the court and adverse party

on the

filing party's intentions to file a Petition for Post-Conviction Relief. A notice is not a vehicle to

seek any kind of relief. There are no assertive substantive grounds that can be brought up in a

notice.

The trial court cited State v. Manning in making its ruling/order. State v. Manning

mostly focuses on a Writ of Habeas Corpus and a "PETITION "for Post- Conviction Relief.

It has nothing to do with a notice. This has no bearing of the present case. It is a fact you

cannot file a Notice for Post- Conviction Relief and assert substantive grounds with the

expectations of relief.

The trial counsel ruling/order causes unnecessary delay which stands in violation

of Ariz.Const.Art 2 & 11 and the Petitioners Due Process rights to both Constitution Arizona

and the United States, which is binding by the Fourteenth Amendment to the States.

Petitioner seeks relief of vacating his convictions and sentences or whatever relief warranted.

LAYMAN OF LAW

Defendant contends he is a layman of the law, and submit this pleading with no help or

Legal professionals that this petition for review be read generously and liberally to be exhaust,

Rainey vVarnes, 603 F3d 189 (2010, and to be interpreted less stringently. Williams v.

Lockheart, 849F.2d 1134(1988), and must construed liberally. Ray v. Lanpert, 465F.3d 964(CA9

2006).

CONCLUSION

Wherefore, the Petitioner respectfully request this petition and relief of

vacating the convictions and sentences or whatever relief that warrant the

situation to be granted.

RESPECTFULLY SUBMITTED this the26day ofj«//2021.

Gerald M. Calmese Pro Se

CONCLUSION

Petitioner, Gerald M. Calmese, has been deprived of basic fundamental rights guaranteed

by the Fifth and Fourteenth Amendments of the United States Constitution and seek relief in

This court to restore those rights. Based on the arguments and authorities presented herein.

Petitioner's conviction and sentence was sustained in violation of due process. A.R.S. § 132310 is entitled [fraudulent schemes and artifices." The criminal conduct punishable under

§13-2310 is the scheme to defraud, not any acts committed in furtherance of the scheme. Giso

at 111. This has been settled law in the Arizona Supreme Court and both divisions of this court

for decades. The state now apparently wants this court to overrule all of these cases and

uphold the practice of dividing a single scheme into separate acts in order to subject the

petitioner to serve a consecutive sentence. The theft and fraudulent schemes and artifices

offenses constituted a single act for sentencing purposes under A.R.S. § 13-116. For the

reason

stated, Petitioner prays this court will issue a writ of certiorari and reverse the judgment and

sentence affirmed by the Arizona Supreme court.

Respectfully Submitted this 26th day of July, 2021.

Gerald M. Calmese

ro-se Representation

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