Petition for Writ of Certiorari — Derek Pelker, Petitioner v. United States

Supreme Court briefMar 4, 2023

Ask Donna

What actually matters in this document.

Text

No.:

IN THE SUPREME COURT OF THE UNITED STATES

DEREK PELKER,

Petitioner

Supreme Couit, U.s. '

Fit 1.0

UNITED STATES OF AMERICA,

Respondent

MAR 0 4 2023

OFFICE QFThcctfk

ON PETITION FOR WRIT OF CERTIORARI FROM THE THIRD

CIRCUIT COURT OF APPEALS

PETITION FOR WRIT OF CERTIORARI

Derek Pelker HS-6614

Petitioner, Pro se

SCI Albion

10745 Route 18

Albion, PA 16475-0001

RECEIVED '

MAR H 2023 j

§UPREMEFCTolfRTLnllt'

QUESTIONS PRESENTED

Mr. Pelker alleged the Federal Governments impermissible

collusion within the prosecution of the Commonwealth.of

Pennsylvania for the same misconduct underlying his federal

indictment violated Mr. Pelker1s substantive constitutional right

to be free from arbitrary governmental actions in contravention of

the fundamental constitutional principles of Federalism,

Separation of Powers, Equal Protection, Fundamental Fairness,

Abuse of Process, and several procedural due process protections

under state law. Additionally, Mr. Pelker alleged that said claim

addressed issues outside of the trial record and legal rights

outside the federal jurisdiction. Thus 28 U.S.C. §2255 was the

appropriate proceeding to litigate said claim. However, Mr. Pelker

also alleged that if the Court held said claim was procedurally

defaulted, Mr. Pelker asserted appellate counsel John A. Abom,

Esquire, ineffectiveness in this regard established the essential

"cause" and "prejudice" to excuse said default.

Did the Third Circuit Court of Appeals err in denying Mr. Pelker

a Certificate of Appealability (herein referred to as a "COA") by

relying upon the District Courts erroneous decision that Mr. Pelker

procedurally defaulted his claim of the Federal Governments

unconstitutional collusion in the Commonwealth of Pennsylvania's

prosecution by failing to raise said claim within his direct

appeal and the courts determination that said claim lacked

merit?

Suggested Answer: Yes

LIST OF PARTIES

All parties appear in the caption of the case on the cover

page of this filing.

iii

TABLE OF CONTENTS

Questions Presented

Table of Contents .

Table of Authorities

Opinion Below

Jurisdiction

Statutory and Constitutional Provisions Involved

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

Reasons for Granting the Writ:

I. The Third Circuit Court of Appeals improperly

deferred to the District Courts denial of a

COA in regard to the Federal Government's

collusion within the Commonwealth of

Pennsylvania's prosecution.

II. The Third Circuit Court of Appeals improperly

deferred to the District Courts denial of a

COA in regard to Mr. Pelker's prior c-ounsel's

ineffectiveness in relation to coercing his

guilty plea and self incriminating proffer... 22

III. The Third Circuit Court of Appeals improperly

deferred to the District Courts denial of

Mr. Pelker's 28 U.S.C. §2255 when both courts

failed to address the merits of Mr. Pelker's

claim that prior counsel had a conflict of

interest for adopting and acting upon his

belief Mr. Pelker should had been convicted of

the charged misconduct

IV. The Third Circuit Court of Appeals improperly

deferred to the District Courts denial of a

COA in regard to Mr. Pelker's access to the

court claim requesting reinstatement of his

direct appeal rights

Conclusion

Verification

Certificate of Service

TABLE OF AUTHORITIES

Milier-EI v. Cockrell, 537 U.S. 322 (2003)........

Bond v. United States, 564 U.S. 211 (2011)........

Anderson v. United States, 318 U.S. 350 (1943).

Brinegar v. United States, 93 L.Ed. 1879 (1949)

United States v. Lovasco, 431 U.S. 783 (1977)..

Board of Regents v. Roth, 408 U.S. 564 (1972)..

Morrison v. National Australia Bank, Ltd., 130 S.Ct. 2869 (2010)..14

New York v. United States. 505 U.S. 144 (1992)...

Medina v. California, 505 U.S. 437 (1992).............

Coleman v. Alabama, 399 U.S. 1 (1970)......................

Milliken v. Meyers, 311 U.S. 457 (1940)..................

Eisenstadt v. Baird, 405 U.S. 438 (1972)................

Klopfer v. North Carolina, 386 U.S. 213-(1967)...

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

Strickland v. Washington, 466 U.S. 687 (1984)....

Blackledge v, Allison, 431 U.S. 62 (1977)..............

Hill v. Lockhart, 473 U.S. 52 (1985)........................

McCoy v. Louisiana, 138 S.Ct. 1500 (2018)..............

Von Moltke v. Gillies, 332 U.S. 708 (1948).......... .

Brookhart v. Janis, 384 U.S. 1 (1966)......................

Jones v. Barnes, 463 U.S. 745 (1983)...................... .

Florida v. Nixon, 543 U.S. 175 (2004).................... .

United States v, Cronic, 446 U.S. 648 (1984).....

United States v. Leathers, 354 F.3d 955 (8th Cir 2004)

Brown v. Brannon, 399 F.Supp 133 (3rd Cir 1975)............

Jonnet v. Dollar Savings Bank, 530 F.2d 1123 (3rd Cir 1976)...13

Bristow v. Clevenger, 80 F.Supp.2d 421 (M.D.Pa. 2000)

Rose v. Bartle, 871 F.2d 331 (3rd Cir. 1989)................

Hodge v. United States, 554 F.3d 372 (3rd Cir 2009)..

In re Diet Drugs Prod. Liab. titig., 369 F.3d 293 (3rd Cir 4004)..21

United States v, Wellington. 417 F.3d 284 (2nd Cir 2005)

United States v. Sedlak, 2015 WL 1033981 (M.D.Pa. 2015).

United States v. Morelli, 169 F.3d 798 (3rd Cir 1999)...

United States v. Pelker, 82 F.App'x 93 (3rd Cir 2020)...

Commonwealth v. Wansley, 375 A.2d 73 (Pa. 1977)

vii

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES SUPREME COURT .

Petitioner, Derek Pelker, pro se, respectfully prays that a

Writ of Certiorari be issued to review the judgment of the Third

Circuit Court of Appeals, rendered in these proceedings on

October 26, 2022.

OPINION BELOW

f ,

The Third Circuit Court of Appeals affirmed Petitioner's

convictions and sentence in its Case No.: 22-2291, The entry of

judgment is reprinted in the reproduced record to this petition

(See Exhibit 46). The Third Circuit Court of Appeals Order

denying rehearing is reprinted in the reproduced record to this

petition (See Exhibit 47)

JURISDICTION

The original opinion of the Third Circuit Court of Appeals was

entered October 26, 2022. A timely motion to that Court for rehearing ^

was overruled on December 06, 2022.

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

STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED

The following statutory and constitutional provisions are involved

in this case.

U.S. CONST., AMEND. I

Congress shall make no law respecting an establishment of religion,

or prohibiting the free exercise thereof; or abridging the freedom

of speech or of the press; or the right of the people peaceably

to assemble, and to petition the government for a redress of

grievances.

U.S. CONST., AMEND. V

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a Grand

Jury, except casings arising in the land or naval forces, or in

the Militia, when in actual service in time of War or public

danger, nor shall any person be subject for the same offence to be

twice put in jeopardy of life or limb; nor shall be compelled in

any criminal case to be a witness against himself, nor be deprived

of life, liberty,

orproperty, without due process of law; nor

shall private property be taken for public use, without just

compensation.

U.S. CONST., AMEND. VI

In all criminal prosecutions, the accused shall enjoy the right

to a speedy and public trial, by an impartial jury of the State

and district wherein the crime shall have been committed, which

district shall have been previously ascertained by law, and to be

informed of the nature and cause of the accusation; to be confronted

with the witnesses against him, to have compulsory process for

obtaining witnesses in his favor, and to have the Assistance of

Counsel for his defence.

U.S. CONST., AMEND IX

The enumeration in the Constitution, of certain rights

shall

not be construed to deny or disparage others retained by the people.

U.S. CONST., AMEND. X

The power not delegated to the United States by the Constitution,

nor prohibited by it to the States, are reserved to the States

respectively, or to the people.

U.S. CONST., AMEND. XI

The Judicial power of the United States shall not be construed

to extend to any suit in law or equity, commenced by prosecuted

against one of the United States by Citizens of another State, or

by Citizens or Subjects of any Foreign State.

U.S. CONST., AMEND. XIV

All persons born or naturalized in the United States

and

subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No State shall make

or enforce law which shall abridge the privileges or immunities

of citizens of the United States; nor shall any State deprive any

person of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal protection

of the laws.

28 U.S.C. §2255

STATEMENT OF THE CASE

On April 24, 2015, an armed bank robbery occurred at the

Susquehanna Bank located on South Main Street in East Prospect

Borough, York County. The crime was originally investigated by the

Pennsylvania State Police (herein referred to as "PSP") (counts 1-4

of the Second Superseding Indictment). However, by August 11, 2015,

the Federal Government by the way of the Federal Bureau of

Investigation (herein referred to as "FBI") started to jointly

assist the State's criminal investigation of this matter. (See

Reproduced Record Exhibit (herein referred to as "REE”) 1). FBI

Special Agent (herein referred to as "SA") Donald Asper was

directly involved in said assistance. (See Id.) On August 20, 2015,

PSP Jeremy Corrie and FBI SA Asper created a commercial which was

released to the general public, soliciting assistance in

identifying the suspect in said bank robbery. (See RRE 2) From

this joint release, additional evidence/information was obtained

in this matter. (See RRE 3)

During the course of the state's investigation, PSP Corrie was

deputized by the Federal Government. PSP Corrie was also the lead

state investigator and charging officer in regard to the state's

prosecution. (See RRE 4) Both State and Federal authorities

jointly exchanged information (See RRE 5-6), collectively

interviewed witnesses (See RRE 7), collectively interviewed

several alleged defendant's (See RRE 8-13), used said information

deriving therefrom to discover additional evidence (See RRE 14),

and utilized the prosecutorial mechanisms of the Commonwealth of

Pennsylvania's prosecution to obatin both a tactical advantage and

additional evidence against Mr. Pelker. PSP Corrie obtained a

search warrant; at the behest of the FBI, for Mr. Pelker's DNA.

(See RRE 13 and 15) (See Trial Transcripts (herein referred to as

"TT", pp. 639) Additionally, the Federal Government exerted direct

control of the State's prosecution in order to assist their own

criminal investigation of the same conduct. (See RRE 16-19)

On April 08, 2016, Mr. Pelker was arraigned on said State

charges. On July 18, 2016, Mr. Pelker was provided his delayed

State preliminary hearing which was continued at the behest of

the Federal Government in order to assist their criminal

investigation of the same conduct. (See RRE 19) During said

hearing, Mr. Pelker stated upon the record an objection in regard

to the stalled hearing pursuant to Pa.R.Crim.P, 540(c)(E)(1) and

Pa.R.Crim.P. 542(E). Mr. Pelker wasn't made aware of the nature

of the delay of said hearing until after the proceeding concluded.

(See RRE 17 and 18)

On July 22, 2016, Mr. Pelker's state charges were consolidated

with his codefendants. (See RRE 20) On October 11, 2016, Mr. Pelker

renewed his objection in regard to the above mentioned

unconstitutional delay under oath before the State court. (See

RRE 21, pp. 3, Ins. 19-21) On October 18, 2016, Mr. Pelker filed

an Omnibus Pretrial Motion in the State court in which he presented

several constitutional claims in regard to the above mentioned

unconstitutional delay. (See RRE 23) On October 21, 2016, the

State court scheduled an evidentiary hearing to adjudicate the

above mentioned claims on October 27, 2016. (See RRE 24) Hours

before the scheduled hearing, the Commonwealth of Pennsylvania

Nolle Prosequi all criminal charges within the State's prosecution.

This action evaded an adverse result in this matter from Mr. Pelker's

constitutional claims in regard to the above mentioned

unconstitutional delay. (See RRE 25)

On April 15, 2016, Mr. Pelker was interviewed by FBI SA Ford,

Detective Joseph A. Zimmerman, and PSP Corrie in regard to the

above mentioned charged misconduct. Mr. Pelker refused to cooperate

with both governments and denied any involvement in said misconduct.

(RRE 13) On May 12, 2016, Mr. Pelker was again interviewed but

this time his biological brother and codefendant Keith Pelker was

present. At the time of the interview Keith Pelker was cooperating

with both governments. Mr. Pelker refused to cooperate and denied

any involvement in said misconduct.

On August 24, 2016, Mr. Pelker was charged by way of two (2)

separate Indictments, for various counts related to two (2) bank

robberies, (respectfully l:16-cr-240, Doc. 1; l:16-cr-241, Doc. 25)

Mr. Pelker was appointed Daniel Myshin, Esquire, to represent him.

Throughout Mr. Myshin*s representation, Mr. Pelker reported him

to the District Court for engaging in overzealous plea negotiations

in opposition to his demand to proceed to trial. (See l:16-cr-241,

Doc’s. 58, 61

77, and 84) On November 08, 2016, the District

Court held a hearing in regard to Mr. Pelker*s above mentioned

complaints. During this proceeding, Mr. Pelker reaffirmed said

complaints against Mr. Myshin under oath and before the Court.

(See Id., Doc. 85)

On November 18, 2016, the government requested a continuance in

this matter alleging a possibility of filing a superseding

indictment and continuing unwanted plea negotiations. (See Id • 9

Doc, 88, tl4) On December 20, 2016, Mr. Myshin and AUSA Scott Ford

compelled Mr. Pelker to Mr. Ford*s office in order to permit the

government to conduct a reverse proffer in order to familiarize

Mr. Pelker of the nature of their case and to allow him to fairly

consider their last and final plea offer of 300 months. Mr. Pelker

again refused to plead guilty and cooperate with the government.

Mr. Pelker reported Mr. Myshin for engaging in over zealous plea

negotiations in regard to his demand for representation. On

December 22, 2016, Mr. Myshin moved the District Court to withdraw

from his representation in this matter. (See Id., Doc. 67, 1115)

On December 30, 2016, Jeffrey A. Conrad, Esquire, was appointed

to represent Mr. Pelker. (See Id., Doc. 70; l:16-cr-240, Doc. 70)

Mr. Pelker made Mr. Conrad aware of his prior complaints against

Mr. Myshin and clearly stated his demand for representation was

to proceed to trial. On April 04, 2017, the District Court

consolidated both dockets in this matter to docket number l:16-cr240. (See l:16-cr-240, Doc. 91) On April 21, 2017, Mr. Pelker

reported Mr. Conrad to the District Court for engaging in

overzealous plea negotiations in opposition to his demand for a

trial. (See RRE 26) On April 28, 2017, the District■Court held a

pretrial conference in regard to the above mentioned complaint.

(See RRE 48) At said hearing, Mr. Pelker reaffirmed his complaints

against Mr. Conrad under oath. (See Id., pp. 8, Ins. 22-23) The

District Court noted upon the record that it was apparent Mr.

Pelker wasn't interested in a plea and intended to proceed to

trial. (See Id., pp. 10, Ins. 19-23)

On May 05, 2017, Mr. Conrad contacted Mr. Pelker's girlfriend

at the time Lauren Mohn. (See RRE 27) Said communication was

suppose to pertain to Mr. Pelker's trial clothing, but changed to

imploring Ms. Mohn to coerce Mr. Pelker into pleading guilty. Mr.

Conrad divulged privileged information pertaining to Mr. Pelker's

case to Ms. Mohn in order to impress upon her a false immediacy

for her action. Mr. Conrad appraised Ms. Mohn of an incorrect

sentencing outcome as it related to Mr. Pelker*s case, Mr. Conrad

told Ms. Mohn that if she loved Mr. Pelker; and he loved her, she

would do anything she could to get Mr. Pelker to plead guilty.

Mr. Conrad instructed Ms. Mohn that Mr. Pelker would do anything

for her and her two (2) children. Lastly, Mr. Conrad instructed

Ms. Mohn to not disclose the content of their conversation with

Mr. Pelker as he would report him to the District Court. (See RRE

27) That same day during a prison phone call with Mr. Pelker and

utilizing the information provided by Mr. Conrad, Ms. Mohn

successfully coerced Mr. Pelker into pleading guilty. (See RRE

27 and 29) Mr. Pelker was not informed pertaining to the content

of Ms. Mohn's and Mr. Conrad's earlier communication. (See RRE 27

and 29)

On May 08, 2017, Mr. Pelker; due solely to Ms. Mohn's coercion

(See Id.), appeared for a change of plea hearing in which he

expressed his intent to plead guilty and cooperate with the

government! in exchange for a 300 month sentence. Immediately

after said hearing, Mr. Pelker was taken to AUSA Ford's office

in order to provide his self-incriminating proffer pursuant to

his plea agreement. (See RRE 43) From the fruits of his proffer,

the government obtained information of additional and previously

unknown criminal activities of Mr. Pelker. (See RRE 31-41)(counts

5-10 of the Second Superseding Indictment)

The government agreed that Mr. Pelker*s cooperation would only

include information in regard to himself and nothing pertaining

to any other individual(s).

After Mr. Pelker pled guilty and provided the previous mentioned

proffer, Ms. Mohn informed him about the content of her conversation

with Mr. Conrad on May 05, 2017. (See RRE 27 and 29) On June 12,

2017, Mr. Pelker filed a request with the District Court to

withdraw from the plea agreement. (See RRE 30) On August 17, 2017,

newly appointed counsel John A. Abom, Esquire, filed a formal

Motion to Withdrawal Guilty Plea (See Doc. 137 and 138), in which

he presented Mr. Conrad's misconduct as a fair and just reason. On

October 02, 2017, the Court granted said motion. (See Doc. 184)

On May 04, 2018, Mr. Conrad testified during an evidentiary

hearing in this matter. (See RRE 49) Mr. Conrad acknowledged that

Mr. Pelker never wanted to plead guilty to the criminal charges.

(See Id., pp. 33, Ins. 9-10) Mr. Conrad articulated his belief

that Mr. Pelker was guilty and should had been convicted of said

crimes. (See Id.

pp. 32-33) Mr. Conrad acknowledged that his

intent in contacting Ms. Mohn was to implore her to coerce Mr.

Pelker into pleading guilty. (See Id * J pp. 38-39) Mr. Conrad

acknowledged that he was recently elected as a Lancaster County

judge. (See Id., pp. 8) Lastly, Mr. Conrad acknowledged that the

government agreed that Mr. Pelker's proffer would only consist of

information pertaining to himself and not other individual(s). (See

Id., pp. 48, Ins. 1-6)

Ms. Mohn testified about the content of her May 05, 2017,

conversation with Mr. Conrad. Ms. Mohn articulated how said

communication made her feel and interpreted it as a command to

coerce Mr. Pelker into pleading guilty. Ms. Mohn articulated how

Mr. Conrad instructed her to not divulge the content of their

conversation, as Mr. Pelker wouldn't had pled guilty and reported

him to the Court. Ms. Mohn admitted using the information provided

by Mr. Conrad in order to coerce Mr. Pelker into pleading guilty.

Ms. Mohn acknowledged that she didn't inform Mr. Pelker about the

above mentioned phone call until after he plead guilty. Lastly,

Ms. Mohn stated Mr. Pelker wouldn't had plead guilty if it wasn't

for her actions in coercing him. (See Id • 9 pp. 70-73)

Mr. Pelker testified that Ms. Mohn was crying and imploring

him to plead guilty for her and her children. Mr. Pelker stated

that Ms. Mohn stated that if he truly loved her and her children

he wouldn't put them through a trial. Mr. Pelker articulated how

said communication was demoralizing and made him believe Ms. Mohn

would brake up with him if he didn't plead guilty. Mr. Pelker

stated that Ms. Mohn didn't reveal the content of her communication

with Mr. Conrad until after he pled guilty and provided his proffer.

Lastly, Mr. Pelker testified that he wouldn't had pled guilty and

provided his proffer if it wasn't for Ms. Mohn coercing him into

doing so. (See Id.

pp. 82-86) Mr. Pelker specifically directed the

Court to the fact he refused said plea agreement on four (4)

separate occasions. (See Id.)

REASONS FOR GRANTING THE WRIT

I- THE THIRD CIRCUIT COURT OF APPEALS IMPROPERLY DEFERRED

TO THE DISTRICT COURTS DENIAL OF A COA IN REGARD TO THE

FEDERAL GOVERNMENT'S COLLUSION WITHIN THE COMMONWEALTH

OF PENNSYLVANIA'S PROSECUTION

Mr. Pelker (herein referred to as "Petitioner") avers that the

Third Circuit Court of Appeals improperly deferred to the District

Courts denial of a COA in regard to the Federal Governments

unconstitutional collusion within the Commonwealth of Pennsylvania's

prosecution as he made a substantial showing of the denial of a

constitutional right as jurists of reason could disagree with the

courts resolution of his constitutional claims and or conclude the

issues presented are adequate to deserve encouragement to proceed

further. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)

a. Appeal Meets Constitutional Standing Prerequisites

Procedurally, the United States Constitution Article III standing

requirements have no bearing on Petitioner's capacity to assert a

defense in his criminal case and his appeal meets constitutional

standing prerequisites. He has standing to challenge the current

indictment, convictions, and sentences as they derive from an

unconstitutional investigation which infringed upon the powers and

rights reserved to the Commonwealth of Pennsylvania and himself. His

challenge to his convictions and sentence satifies the case and

controversy requirement because his incarceration, convictions,

sentences, and violations of his constitutional rights constitute a

concrete injury; caused by the convictions and sentences that derived

from an unconstitutional investigation which is redressable by

invalidation of said convictions and sentences. See Bond v. United

States, 564 U.S. 211, 218 (2011)

b. The Federal Government's Involvement, Participation, and Collusion

Within the Commonwealth of Pennsylvania's Prosecution Violated

the Constitutional Principle's of Federalism and Separation of

Powers

Petitioner avers that the lower courts erred by concluding that

the Federal Government's involvement, participation, and collusion

within the Commonwealth of Pennsylvania's prosecution did not

violate the constitutional principle's of Federalism and Separation

th 10th, and 11th Amendments of the

of Powers expressed by the 9

United States Constitution. See U.S.Const.Amend. 9th, 10th, and 11th

The lower court held: "Indeed, cooperation 'between federal and

state officials not only do[es] not offend the Constitution but

[is] commonplace and welcome.' See United States v. Leathers, 354

F.3d 955, 960 (8th Cir 2004)" (See ERE 45, pp. 10) "the Court

previously noted in denying Petitioner's pretrial motions, nothing

suggests that 'continuance of [his] preliminary hearing amount[ed]

to a constitutional violation or offend[ed] the concept of federalism.

(Doc No 356 at 4-5)" (See Id., pp. 11) "Morever, the federal

government's cooperation with state authorities is not prohibited and

does not offend principles of federalism or separation of powers, and

violations of state procedural rules do not alone give rise to due

process violations, as Plaintiff appears to suggest." (See Id.)

The lower courts reliance upon the above mentioned argument was

erroneous. Though cooperation between federal and state officials

is permissible, said cooperation is not without restrictions. This

is because "principles of equity, comity, and federalism have little

force in the absence of a pending state proceeding." See Brown v.

Brannon, 399 F.Supp 133, 136 (3rd Cir 1975) "Though cooperation is

encouraged, the states are demanded to utilize its jurisdiction in

a manner consistent with the values of federalism and fundamental

fairness." See Jonnet v. Dollar Savings Bank, 530 F.2d 1123, 1140

(3rd Cir 1976); United States v. Mardis, 600 F.3d 693, 697 (6th

Cir 2010)(stating impermissible collusion could be demonstrated with

evidence that one sovereign manipulated another for an advantage.)

This Court has previously held that improper collaberation and

working arraignments between federal and state authorities is

forbidden.. See Anderson v. United States, 318 U.S. 350 (1943);

Brinegar v. United States, 93 L.Ed. 1879, 1893 (1949) This Court also

held that preindictment delay intended to harass or gain a tactical

advantage violates the due process clause. See United States v.

Lovasco. 431 U.S. 783, 789“90 (1977) Lastly, this Court previously

held that "prohibition against improper use of the formal restraints

imposed by the criminal process lies at the heart of the liberty

interest protected by the Fourteenth Amendment due process clause."

See Board of Regents v. Roth, 408 U.S. 564, 572 (1972)

The only dispute in this matter is whether the Federal Government's

request to the Commonwealth of- Pennsylvania to delay the state

prosecution of Petitioner in order to assist the parallel federal

investigation of the same charged misconduct violated his

constitutional rights. (See RRE 19) Though Petitioner didn't

possess a constitutional right to a preliminary hearing within the

state prosecution under the United States Constitution, he was .

entitled to said hearing under state created rights. See Pa.R.Crim.P.

540(E)(2)(right to a timely preliminary hearing without unnecessary

delay); Pa.R.Crim.P. 540(F)(l)(defining a timely preliminary hearing

as one within ten (10) from arraignment); Pa.Const.Art. 1, §9

(right to due process of law) Said state rights, statutes, and or

procedures did not recognize an extraterritorial application or

exemption to their applicability. "When a statute gives no clear

indication of an extraterritorial application, it has none." See

Morrison v. National Australia Bank, Ltd., 130 S.Ct. 2869, 2873

(2010) Petitioner retained a substantive constitutional right to

not be subjected to arbitrary governmental actions in contravention

of the constitutional fundamental principles of Federalism and

Separation of Powers. See Bonds, 564 U.S. at 221. "The principles

of limited national powers and state sovereignty are intertwined.

While neither originates in the Ninth, Tenth, and Eleventh

Amendments, both are expressed by them. Impermissible interference

with state sovereignty is not within the enumerated powers of the

National Government." See New York v. United States, 505 U.S. 144,

155 (1992) "Federalism is more than an exercise in setting boundaries

between different institutions of government for their own integrity.

Rather, federalism secures to citizens the liberties that derive

from from the diffusion of sovereign powers." See New York, 505 U.S.

at 181.

The Federal Government's collusion within the state proceedings

in order to assist their future prosecution of the same charged

misconduct offended the fundamental principles of justice rooted in

the traditions and conscience of the United States and transgressed

the principles of fundamental fairness. See Medina v. California,

505 U.S. 437, 446-48 (1992) Petitioner's constitutional rights to

access to the courts were chilled, his right to due process of law

weaponized, and his right to not be subjected to arbitrary

governmental actions in contravention of the principles of

Federalism and Separation of Powers denied, solely to assist their

parallel investigation for the state charged misconduct.

Petitioner asserts that the conduct he was charged, convicted,

and sentences of (respectfully counts 1-4 of the Second Superseding

Indictment), derive from the unconstitutional actions undertaken

by the Federal Government. The federal executive officers conduct,

involvement, and collusion in the state prosecution signaled a

massive and unjustifiable expansion of federal law.into the state

prosecutorial mechanisms and procedures. The prosecutorial

mechanisms and integrity of the Commonwealth of Pennsylvania; in

its inherent capacity as a sovereign, and Petitioner's rights which

derived therefrom, were displaced, degraded, and weaponized by the ‘

Federal Government's collusive misconduct in disregard of the

fundamental conceptions of justice.

c. The Federal Government's Collusion Violated Petitioner's Due

Process Rights

Petitioner asserts that the lower courts erred by concluding that

the Federal Government's collusion within the states prosecution did

not violate his due process rights. See U.S.Const.Amend. 5th and

6t*l# Under state law, Petitioner possessed the right to a timely

preliminary hearing without unnecessary delay which state law

defined as a hearing within ten (10) days after arraignment. See

Pa.R.Grim.P. 540(E)(2); Pa.R.Crim.P. 540(F)(1). Petitioner was

arraigned on the state charges on April 08, 2016, and was not

provided a preliminary hearing until July 18, 2016; approximately

100 days after his arraignment. (See RRE 17)

Due to the Federal Government's requested delay (See RRE 19) the

day of Petitioner's scheduled preliminary hearing (See RRE 16), the

state court failed to schedule any hearing and grant said delay

until June 07, 2016. (See RRE 17) This rendered the state courts

docket void of any future court date for twelve (12) days despite

the fact he remained incarcerated demanding said right. (See RRE 18)

"An individual defendant must be guaranteed as speedy a preliminary

hearing as is practicable. Where no hearing date was set pending

word from the Commonwealth and where the docket was silent as to

the continuance subsequently granted, the accused who was

incarcerated during the period was unlawfully deprived of liberty."

See Commonwealth v. Wansley, 375 A.2d 73, 75-6 (Pa. 1977)

This Court has previously held that a "preliminary hearing is a

critical stage of a state's criminal" prosecution. See Coleman v.

Alabama, 399 U.S. 1, 10 (1970) The Federal Government utilizing

said critical hearing and colluding to deprive Petitioner his state

procedural due process protections to assist their investigation

of the same misconduct was an improper use of the formal

restraints deriving from said prosecution. See Roth, 408 U.S. at

572. Said usage was fundamentally unfair as it provided the Federal

Government assistance in regard to the same misconduct being

prosecuted by the state while depriving Petitioner the due process

under state law which said prosecution was required to provide. See

Milliken v. Meyers, 311 U.S. 457, 463 (1940) Said usage was also

an abuse of process as Petitioner's state prosecution was perverted

into an illegitimate purpose of assisting the Federal Government

in a future prosecution against him for the same charged misconduct

while denying him his state created rights. (See RRE 19) "To

establish a claim for abuse of process, there must be some proof

of a definite act or threat not authorized by the process; or aimed

at an objective not legitimate in the use of process." See

Bristow v. Clevenger, 80 F.Supp.2d 421, 430 (M.D.Pa. 2000) This

is applicable when a "prosecution is initiated legitimately and

thereafter is used for a purpose other than that intended by the

law." See Id. at 431(quoting Rose v, Bartle, 871 F.2d 331, 350

(3rd Cir 1989)

Due to the Federal Government's requested delay, Petitioner's

state speedy trial right was violated. Under state law, "trial in

a court case in which a written complaint is filed against the

defendant, when the defendant is incarcerated on that case, shall

commence no later than 180 days from the date on which the

complaint is filed." See Pa.R.Grim.P. 600(A)(2). Petitioner was

arraigned on said charges on April 08, 2016, and remained

incarcerated therefrom. (See RRE 16); Pa.R.Grim.P. 600(C)(1)

(stating that state speedy trial right commences upon a criminal

defendant is arraigned on said charges if arrest couldn't occur

upon the filing of a written compliant.) The Commonwealth of

Pennsylvania did not Nolle Prosequi the state charges until

October 27, 2016. (See RRE 25) In which, Petitioner remained

incarcerated within York County Prison during the pendency of said

charges demanding to be provided his rights. (See RRE 18) From the

arraignment to the Nolle Prosequi of said charges totaled 202 days,

in violation of Pa.R.Crim.P. 600(A)(2).

Petitioner was denied equal protection of law which similarly

situated defendants within the Commonwealth of Pennsylvania were

provided, merely because he was being federally investigated for

the charged misconduct. (See RRE 19) Petitioner was excluded and

denied both the previously articulated substantive constitutional

rights and state procedural due process protections which all

citizens are entitled to. See U.S.Const.Amend. 14 t*1. Petitioner's

exclusion from the above mentioned protections "is of critical

importance, since the discriminatory exclusion alone violates the

asserted rights quit apart from any objective or subjective

disadvantage that flowed from it.*' See Eisenstadt v. Baird, 405

U.S. 438, 452-55 (1972).

The tactical decision by the Commonwealth of Pennsylvania to

Nolle Prosequi the state charges on October 27, 2016, (See RRE 25);

the day of Petitioner's scheduled evidentiary hearing to address

his constitutional claims in regard to the above mentioned

misconduct (See RRE 23), does not present an obstacle in regard to

his current claims before the Court. See Klopfer v. North Carolina,

386 U.S. 213 (1967). An adverse decision in regard to the above

mentioned constitutional claims by the state court would had

prevented the Federal Government from prosecuting said conduct.

d. Prejudice

Petitioner was prejudiced by the Federal Government's

unconstitutional actions in this matter. Petitioner was arbitrarily

and unconstitutionally incarcerated due to the Federal Government's

requested delay. (See RRE 19) Despite the fact that the Federal

Government was the sole reason for said delay, Petitioner wasn't

accredited any time spent incarcerated in this regard to his current

Federal sentences. Petitioner's attorney client relationship with

his state court appointed counsel Mr. Dubbs was irreconcilably

broken to the point he ceased Mr. Dubbs representation in his

state prosecution and elected to proceed pro se solely because of

the above mentioned delay. (See RRE 21) Petitioner's substantive

18 •

constitutional rights and state due process rights were violated

in order to provide the Federal Government a fundamentally unfair

advantage over him in their future prosecution of the same

misconduct. Petitioner's right to access to the courts were chilled

and or interfered with in order to provide the Federal Government

their requested assistance. (See RRE 19) While the Petitioner was

being excluded and denied the above mentioned rights the Federal

Government was obtaining evidence and witnesses to use against

him in said future prosecution. Lastly, Petitioner currently stands

convicted and sentenced from the fruits of the Federal Government's

investigation.

e. Procedural Default

Petitioner asserts that this claim addressed issues outside the

trial court record and legal rights and procedures outside the

federal judiciary. Thus 28 U.S.C. §2255 was the appropriate

proceeding to litigate said claims. However, the lower courts held

that said claims were procedurally defaulted as they should had

been presented within his direct appeal. (See RRE 45, pp. 8-9)

Petitioner asserts that appellate counsel Mr. Abom's ineffectiveness

in this regard is sufficient cause and prejudice to overcome said

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

Mr. Abom was obligated to be knowledgable of the relevant legal

issues of the case, present claims which have merit and are nonfrivolous which could warrant relief, and act upon Petitioner's

best interest. See American Bar Association Standards (herein

referred to as "ABA Standards") 4-3.7(g); 4-4.6(a); and 4-9.3(d).

Additionally, Petitioner instructed Mr. Abom to present said claim

but refused to do so. See Hodge v. United States, 554 F.3d 372,

380 (3ra Cir 2009)(petitioner establsihed cause to excuse a

procedural default by instructing counsel.to file claim.) The

record in this matter supports Petitioner's claim in this regard

as he presented said claim both within a pretrial motion and at

his sentencing. As Petitioner has proven that the underlying claims

have merit, are non-frivolous, implicate fundamental principles of

justice, and warrant relief, Mr. Abom's failure to present said

claim cannot be deemed a reasonable strategic decision and his

performance was deficient under relevant legal precedents and

professional norms.

Futhermore, Petitioner satisfied the prejudice prong. As the

above mentioned claims have merit, are non-frivolous, implicate

fundamental principles of justice, and warrant relief, there is a

reasonable probability that more likely than not the outcome of

his direct appeal would had been different absent Mr. Abom's

unprofessional error. The Third Circuit Court of Appeals would had

more likely than not granted Petitioner's direct appeal, dismissed

counts 1-4 of the Second Superseding Indictment, and vacated and

remanded the remaining counts back to the District Court for a new

trial. Mr. Abom's unprofessional error worked to his actual and

substantial disadvantage, infecting his entire trial with error of

constitutional dimensions.

e. Compelling Reasons to Address Claims

Petitioner's claims implicate fundamental principles of justice

which require clarification from the Court. As the Court and

Congress have previously held that such interference within

' -20

ongoing state proceedings from the federal judiciary is restricted

unless extraordinary circumstances are presented. See In re Diet

Drugs Prod. Liab. Litig., 369 F.3d 293, 305 (3rd Cir 2004)(Younger

Absention Doctrine); 28 U.S.C. §2283. It would be unreasonable to

conclude that the executive branch would not be subjected to the

same or even greater restrictions. The Federal Government's action

in this matter was a massive intrusion into both the states

performance and integrity of an essential governmental function

and criminal defendants rights which derive therefrom. It would be

in the interest of the public for the Court to provide review in

this matter. Lastly, the Court providing review in regard to the

above mentioned claims coincides with Congress and their intent

to provide oversight in regard to the Federal Governments propensity

to act in unconstitutional manners. (Congressional Committee for

the Weaponization of the Federal Government)

f. Relief

Petitioner request the Court for the following relief:

1) Grant Writ of Certiorari

2) Dismiss counts 1-4 of the Second Superseding

Indictment, vacate convictions and sentences on

the remaining counts, and remand it back to the

District Court for a new trial

3) Remand this matter back to the lower court in

to grant a COA

4) Any other relief which the Court deems appropriate

II. THE THIRD CIRCUIT

COURT OF APPEALS IMPROPERLY DEFERRED

TO THE DISTRICT COURTS DENIAL

OF A COA IN REGARD TO

PETITIONER'S PRIOR COUNSEL'S INEFFECTIVENESS IN

RELATION TO COERCING HIS GUILTY PLEA AND SELF

INCRIMINATING PROFFER

Petitioner asserts that the Third Circuit

improperly deferred to the

Court of Appeals

District Courts denial of a COA in

regard to his prior counsel Jeffrey A. Conrad,

Esquire,

ineffectiveness in relation to imploring Ms. Mohn

to coerce him

into pleading guilty and

providing an incriminating proffer as he

made a substantial showing of the denial of

a constitutional right

as jurists of reason could disagree with the

courts resolution of

his constitutional claims and or conclude the issues

adequate to deserve

presented are

encouragement to proceed further. See Miller-El.

537 U.S. at 327.

a. Mr. Conrad Imploring Ms. Mohn to Coerce Petitioner

Into Pleading

Guilty and Providing an Incriminating Proffer

was Ineffective

Assistance of Counsel

Petitioner asserts that Mr. Conrad disregarding his demand to

proceed to trial by eliciting Ms. Mohn's assistance im coercing him

into pleading guilty and providing an incriminating proffer

unconstitutionally infringed upon his fundamental

autonomy interest

in deciding the objectives of his defense in violation of his

constitutional right to effective assistance of counsel.

See U.S.

Const.Amend. 6^

In order to establish a claim of ineffective

assistance of

counsel, Petitioner must demonstrate: l) that his

attorney1s

performance was deficient; and 2) counsel*s deficiency caused

prejudice. See Strickland, 466 y.S. at 687. "The Strickland test

applies where the petitioner suggests that his guilty plea resulted

from ineffective assistance of counsel." See Hill v, Lockhart, 473

U.S. 52, 56 (1985) The court is mandated to review all circumstances

of the plea which include facts which are on and off the record.

See Blackledge v. Allison, 431 U.S. 62, 75 (1977)

Deficiency of Performance Prong

To establish deficient performance, Petitioner must show that

counsel*s performance "fell below an objective standard of

■i

reasonableness." See Strickland, 466 U.S. at 688. In this respect,

the measure of an attorney’s performance "remains simply reasonableness

under prevailing professional norms** and must be determined by the

facts and circumstances of the particular case. See Id., at 689-90.

It is well established that a defendant has a constitutionally

protected interest in **mak[ing] the fundamental choices about his

own defense." See McCoy v. Louisiana, 138 S.Ct. 1500, 1511 (2018)

This autonomy interest arises out of the fundamental proposition

that "[t]he right to defend is personal'* and the defendant's choice

in exercising that right "must be honored out of respect for the

individual which is the lifeblood of the law." See Id., at 1507.

This Court has held that the fundamental decision whether to plead

guilty or not may only be made by "the defendant alone." See Von

Moltke v. Gillies, 332 U.S. 708, 721 (1948); Brookhart v. Janis,

384 U.S. 1, 7 (1966); Jones v. Barnes, 463 U.S. 745, 751 (1983);

Florida v. Nixon, 543 U.S. 175, 187 (2004)(explaining that "counsel

lacks authority to consent to guilty plea on client's behalf.");

McCoy, 138 S.Ct= at 1516("[A] defendant cannot be forced to enter

of plea against his wishes.")(Alito, J., dissenting)

The facts and circumstances of the case clearly establish that

Petitioner not only refused to plead guilty and cooperate with the

government on numerous prior occasions but continuously reported

his prior counsel’s for even engaging in any plea negotiations on

his behalf. (See RRE 30 and 48) Mr. Conrad eliciting Ms. Mohn

assistance in coercing Petitioner into pleading guilty and providing

his incriminating proffer merely a week after he reported counsel

to the District Court for overzealous plea negotiations was contrary

to his professional norms. See ABA Standards 4-5.l(f)(Defense counsel

should not exert undue influence on the client's decision regarding

a plea.); ABA Standards 4-5.1(g)(Defense counsel should advise the

client to avoid communication about the case with anyone, including

family and friends.); ABA Model Code of Professional Responsibility

EC7-7(Defense counsel must respect and abide by the defendants

decision whether to pled guilty or not.); and ABA Standards 4-6.2(e)

(Defense counsel may make a recommendation to the client regarding

disposition proposals, but should not unduly pressure the client to

make any particular decision.)

Mr. Conrad's proffered explanation at the May 04, 2018, evidentiary

hearing in regard to this claim substantiates the unreasonableness of

his misconduct.

"And on that particular night, I did speak with her

[Ms. Mohn] about clothing, about getting him clothes, but

then I also spoke with her about, you know, what I believed

to be overwhelming evidence in the case and my hope that

activities which he was engaged in. (See RKE 31-42) The above

mentioned criminal conduct was charged, prosecuted, and Petitioner

was ultimately convicted of said conduct which derived from Mr.

Conrad's ineffectiveness, (respectfully counts 5-10 of the Second

Superseding Indictment)

b. Mr. Conrad had an Actual Conflict of Interest by Campaigning

for Judgeship

Petitioner asserts that Mr. Conrad had an actual conflict of

interest while providing Petitioner representation, as Mr. Conrad

Was campaigning for judgeship in Lancaster County, Pennsylvania,

and

never disclosed said fact to Petitioner nor obtained his informed

consent. Mr. Conrad was obligated to inform Petitioner that during

his representation, he was campaigning for judgeship. "If defense

counsel is a candidate for a position, or seeking employment, as a

prosecutor or judge, this should be promptly disclosed to the client,

and informed consent to continue be obtained." See ABA Standards

4-1.7(j)

To establish a conflict of interest, Petitioner must demonstrate

1) some plausible alternative defense strategy might have been

pursued, and 2) the alternative defense was inherently in conflict

with or not undertaken due to the attorney's other loyalties or

interest. See United States v. Morelli, 169 F.3d 798, 810 (3rd

Cir 1999) If an actual conflict of interest is demonstrated,

prejudice is presumed. See United States v. Cronic, 446 U.S. 648,

666 (1984)

Some Plausible Alternative Defense Strategy Might Have Been Pursued

During Mr. Conrad's entire representation of Petitioner, he

consistently implored Petitioner to plead guilty despite the fact

that Petitioner unequivocally demanded to proceed to trial. (See

RRE 30 and 48) Mr. Conrad should had abandoned the unwanted plea

negotiations strategy and pursued Petitioner's strategy and demand

to proceed to trial.

The Alternative Defense Was Inherently In Conflict With Or Not

Undertaken Due To The Attorney's Other Loyalties Or Interest

The lower courts held that "the fact that Attorney Conrad was

campaigning for judicial office falls short from demonstrating that

he persuaded Petitioner to enter into the plea agreement due to

other loyalties or interest." (See RRE 45, pp. 17) Petitioner asserts

that Mr. Conrad's overzealous plea negotiations in opposition to

his demand for a trial was undertaken because of his interest in his

campaign for judgeship in Lancaster County, Pennsylvania. Petitioner

proceeding to trial would had provided publicity in the surrounding

area, which includes Lancaster County. Mr. Conrad being counsel of

record, would had been publicly acknowledged as representing an

accused bank robber. To limit said publicity and the negative effect

said publicity would/could of had in regard to his campaign, Mr.

Conrad ignored Petitioner's demand in regard to proceeding to trial

and instead elicited Ms. Mohn's assistance in coercing him into

pleading guilty and providing an incriminating proffer. (See RRE

27 and 29)

c. Incriminating Proffer was not in Petitioner's Best Interest

Petitioner asserts that Mr. Conrad procurring his incriminating

proffer for the government was not in his best interest. Throughout

the entire prosecution, Petitioner unequivocally refused to pled

guilty and provide an incriminating proffer. However, once Mr.

Conrad secretly elicited Ms. Mohn's assistance in coercing Petitioner

into doing so, he eventually succumbed to said coercion. (See RRE

27, 29, and 49) Prior to Petitioner providing his incriminating

proffer on May 08, 2017, Mr. Conrad had the government agree that

"because of his own philosophy, was not going to talk about anyone

else. The government had already given me the assurance that he

was going to get this..." (See RRE 49, pp. 47-48) "You were never

going to talk about other people, just yourself." (See Id., pp. 49)

Despite the fact Petitioner wouldn't speak about anyone else but

himself, the government retainsd derivative use of said proffer.

(See RRE 43) Petitioner provided the government his incriminating

proffer which included information about criminal conduct

which

he engaged in and the government had no prior knowledge of. (See

RRE 31-42) The derivative use and Petitioner's inability to disclose

any and all information in regard to any other person involved beside

himself, ensured that the government would be able to charge him in

the future from the fruits of his unconstitutional proffer. (See Id.)

Mr. Conrad was obligated to ensure that Petitioner's best

interest was protected. Sea ABA Standards 4-1.2(a) and (d). Mr.

Conrad being aware that Petitioner would not provide any information

pertaining to anyone else other than himself and the government

retaining derivative use of said statement, should had instructed

Petitioner to not provide said proffer and or had the government

agree to forfeit the derivative use of said proffer.

There is a reasonable probability that absent Mr. Conrad’s

unprofessional errors, Petitioner would not had provided his

incriminating proffer. (See RRE 43) As previously articulated,

Petitioner had continuously refused to plead guilty and cooperate

with the government. Petitioner reported both the government and

his prior counsel’s to the District Court for attempting to usurp

his fundamental decision to proceed to trial. (See RRE 30 and 48)

Lastly, Petitioner’s proffer only occurred because Mr. Conrad

secretly elicited Ms. Mohn’s assistance in coercing him into

doing so. (See RRE 27, 29, and 49) Instead of protecting

Petitioner’s rights and pursuing his best interest, Mr. Conrad

acted as an agent of the government solely to usurp his rights.

d. Compelling Reasons to Address Claims

Mr. Conrad’s misconduct in this case usurped Petitioner’s

fundamental autonomy interest in deciding the fundamental objectives

of his own defense. The Court providing review on this matter will

assist both the effectiveness of the criminal justice system as a

whole and clearly articulate the restrictions within counsel's

performance. Thus review would be in the interest of justice.

e. Relief

Petitioner request the Court for the following relief:

1) Grant Writ of Certiorari

2) Dismiss counts 5-10 of the Second Superseding

Indictment, vacate convictions and sentences on

the remaining counts, and remand it back to the

District Court for a new trial

3) Remand this matter back to the lower court in

order to grant a COA

4) Any other relief which the Court deems appropriate

III. THE THIRD CIRCUIT COURT OF APPEALS IMPROPERLY DEFERRED TO

THE DISTRICT COURTS DENIAL OF PETITIONER'S 28 U.S.C.

§2255 WHEN BOTH COURTS FAILED TO ADDRESS THE MERITS OF HIS

CLAIM THAT PRIOR COUNSEL HAD A CONFLICT OF INTEREST FOR

ADOPTING AND ACTING UPON HIS BELIEF THAT PETITIONER

SHOULD HAD BEEN CONVICTED OF THE CHARGED MISCONDUCT

Petitioner asserts that the Third Ciruit Court of Appeals

improperly deferred to the District Courts denial of Petitioner's

28 U.S.C. §2255 when both courts failed to address the merits of

his claim that prior counsel Jeffrey A. Conrad, Esquire, had an

actual conflict of interest for adopting and acting upon his belief

that Petitioner should had been convicted of the charged misconduct,

"an attorney who adopts and acts upon a belief that his client

should be convicted fails to function in any meaningful sense as

the Government's adversary." See Cronic, 446 U.S. at 666.

The facts and circumstances of the case clearly establish that

Petitioner not only refused to plead guilty and cooperate with the

government on numerous prior occasions but continuously reported

his prior counsel's for even engaging in any plea negotiations on

his behalf. (See RRE 30 and 48) Mr. Conrad eliciting Ms. Mohn's

assistance in coercing Petitioner into pleading guilty and providing

his incriminating proffer merely a week after he reported counsel

to the District Court for overzealous plea negotiations was

contrary to his professional norms. See ABA Standards 4-5.1(f);

ABA Standards 4-5.1(g); ABA Model Code of Professional Responsibility

EC7-7; and ABA Standards 4-6.2(e).

Mr. Conrad acknowledged said belief and acting upon it within

his testimony at the May 04, 2018, evidentiary hearing.

"And on that particular night, I did speak with her

[Ms. Mohn] about clothing, about getting him clothes, but

then I spoke with her about, you know, what I believed

to be overwhelming evidence in the case and my hope that

I could get him to take a plea agreement." (See RRE 49,

pp. 11)

Mr. Conrad*s misconduct was in direct contradiction to

Petitioner's demand for representation. Mr. Conrad could had

abandoned his overzealous belief of Petitioner's guilt and

elicitation of Ms. Mohn's assistance in coercing his conviction and

confession and instead focused solely upon his demand for a trial.

Lastly, Mr. Conrad's belief that Petitioner was guilty was the

sole reason he engaged in said misconduct.

The lower courts failed to address this claim despite Petitioner

properly presenting it. (See RRE 45-47) For the above mentioned

reasons, Petitioner request the Court for the following relief:

1) Grant Writ of Certiorari

2) Remand case back to lower court in order to

address claim

3) Dismiss counts 5-10 of the Second Superseding

Indictment, vacate convictions and sentences on

the remaining counts, and remand back to the

District Court for a new trial

4) Any other relief which the Court deems appropriate

IV. THE THIRD CIRCUIT COURT OF APPEALS IMPROPERLY DEFERRED.TO

THE DISTRICT COURTS DENIAL OF A COA IN REGARD TO PETITIONER'S

ACCESS TO THE COURT CLAIM REQUESTING REINSTATEMENT OF HIS

DIRECT APPEAL RIGHTS

Petitioner asserts that the Third Circuit Court of Appeals

improperly deferred to the District Courts denial of a COA in

regard to his access to the court claim requesting reinstatement

of his direct appeal rights to file with this Court a Writ of

Certiorari from the denial of said appeal as he made a substantial

showing of the denial of a constitutional right as jurists of

reason could disagree with the courts resolution of his constitutional

claims and or conclude the issues presented are adequate to deserve

encouragement to proceed further. See Miller-El, 537 U.S. at 327.

On July 29, 2020, the Third Ciruit Court of Appeals denied

Petitioner's direct appeal. See United States v. Pelker, 82 F.App'x

93 (3rd Cir 2020) Petitioner had until December 26, 2020, to file

a Writ of Certiorari with this Honorable Court. However, during the

entire period of time mentioned above, the Pennsylvania Department

of Corrections (herein referred to as "PADOC") was operating under

a state of emergency which restricted his access to any and all

legal materials and institutional law library. (See RRE 44)

On January 20, 2020, the United States confirmed its first case

of Covid-19. Shortly thereafter, on March 02, 2020, the Commonwealth

of Pennsylvania s Governor Tom Wolf signed an Emergency Disaster

Declaration. As a result, the PADOC nearly restricted all and any

prisoners movements within their institution. The extraordinary

circumstances caused by the global pandemic interfered, chilled,

and denied Petitioner his constitutional right to file said

petition. See U.S.Const.Amend. 1

The lower court rested upon Petitioner's alleged "proficiency"

in concluding that his constitutional rights weren't violated.

Petitioner asserts that the lower courts own observation is a fact

which in fact goes against their ruling. (See RRE 45, pp. 18) There

is basis to concluded that Petitioner; if he did file a petition for

writ of certiorari in his direct appeal, this Court would had granted

review. In his direct appeal, Petitioner alleged that the

District

Court abused its discretion by denying his verbal motion to continue

trial. Petitioner would had demonstrated that the trial docket

revealed that he was incapable to filing a formal request prior as

the District Court failed to rule upon a prior request. (Doc. 262)

(Doc. 355, ORDER, May 10, 2018)

Petitioner request the Court for the following relief:

1) Reinstate his direct appeal rights

2) Remand this case back to the lower court in order

to grant a COA

3) Any other relief which the Court deems ,appropriate

CONCLUSION

WHEREFORE, the Court should grant this Petition for Writ of

Certiorari for all the reasons stated.

Respectfully,

iUM*

Derek Pelker HS-6614

Dated: March 04, 2023

o/.

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.