Petition for Rehearing — Lahme Perkins, Petitioner v. Laurel Harry, Secretary, Pennsylvania Department of Corrections, et al.

No. 23-5528

IN THE SUPREME COURT OF THE UNITED STATES

Lahme Perkins,

Petitioner

V.

Laurel Harry, Secretary,

Pennsylvania Department of Corrections, et al.,

Respondent

ON PETITION FOR WRIT OF CERTIORARI TO

THE THIRD CIRCUIT COURT OF APPREALS

PETITION FOR REHEARING

Lahme Perkins

HW6401

SCI Frackville

1111 Altamont Blvd.

Frackville, PA 17931

RECEIVED

NOV 30 2023

CE OF THE CLERI

QF REME COURT, U.S.

TABLE OF CONTENTS

PURO DORE ERED DDO O RTOS HE DOE HEREE DESO ODODE HEROS ODOT DADE DHE DSO TO DSU HE DON ESE DEES ONOP OE HERE EESERESESEEEEEEHESEEEEEEH ESSE EEEES

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REASONS FOR GRANTING REHEARING

L. No Fair Notice and Opportunity............. Be Suelo e SEE oGlsu AN. + oGIee Heese euch + efor +serenreoessesorsiseeseseeers eHhs 2

2. Petitioner did show cause and prejudice for procedural default

CONCLUSION 7

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TABLE OF CITATIONS

Judicial Decisions

Coleman v. Thompson, 111 S. Ct. 2546, 2565(1991)......ccccccecseeeseeeeeseeeeeeeeees 4

Commonwealth v. Craig, 2020 pa. Super. LEXIS 291... ..cccceccseenseeeeeeeeeeeseeeees 5

Commonwealth v. Jones, 700 A.2d 423(PA.1997)......cccccccseceeeeneeeseneneeeeteneees 5

Commonwealth v. Keffer, 2014 Pa. Super. Unpub. LEXIS 33026.........:...seeeee 5

Commonwealth v. McClelland, 233 A.3d 717(Pa.2020)......cccecccesseneeeseeeeeeeees 6

Day v. McDonough, 126 S.Ct. 1675(2006)......ccccccecceensereneeeeeeeeeeeeeeeeeeeenes infra

Hampton v. Kelly, 1990 U.S. Dist. LEXIS 20850(E.D.Ny.1990).......cccceceeeeeeeeees 6

Martinez v. Ryan, 132 S. Ct. 1309(2012)..... cece eee eee eee eee eee eee e eee eeenensnaeees 4

McKinley v. Superintendent of Rockview, 2022 US App LEXIS 27563(3d Cir. 2022)..3

Paris v. Comm. of PA, 2021 U.S. Dist. LEXIS 182512......ccccccesceeceeeneeereeeeeeeeeeeeteeeeees 5

Perez v. Sec'y Fla. Dep't or Corr., 947 F.3d 649, 654(11th Cir. 2020)..........ccceee ees 3

Shinn v. Ramirez; 5967U.S. (2022)... cenenmamedtecnceucenmieersinsmmennent hed Ene ReEenIeD 4

Thomas v. Payne, 2021 US LEXIS 3726(2021)...... cece ececese eee e tener eeeneeneeteneeneeeeeenees 3

United States v. Bendolph, 409 F.3d 155, 169(3d Cir. 2005)... ceeeeeeneee sees 3

Wiggins v. Clark, 2008 U.S. Dist. LEXIS 104363(E.D.Cal.2008)..........cceeeeeeeees 6

Statutory and Constitutional Provisions

Rule 1925(B), Pennsylvania Rules of Appellate Procedure......cccccecensseeeeereneneeeees i

18 U.S.C.A. §2254., nasonssnessenes onus twa npien apsauNaes pieceee SUsae Ole SUE Se UWARa Ra E anes HERR eNenNls infra

Rule 44 of the Supreme Court of the United States........ccccceeece essen ee eeeeeeeeeneeenen 1

PETITION FOR REHEARING

AND SUGGESTIONS IN SUPPORT

COMES NOW Petitioner, Lahme Perkins, pro se, and prays this Court to

grant Rehearing pursuant to Rule 44, and thereafter, grant him a Writ of

Certiorari to review the decision of the third Circuit Court of Appeals. In support

of said petition, he avers the following:

STATEMENT OF FACTS

Following conviction for First Degree Murder and an unsuccessful direct

appeal, Petitioner filed a Petition for Post-Conviction Relief, seeking relief for

ineffective assistance of counsel for failing to conduct a pre-trial investigation,

consult or retain a DNA expert, interview and present character witnesses, and

failing to object to inflammatory photographs.

The Pennsylvania Superior Court affirmed, holding that all of his claims

were waived for failure to file a 1925(B) Concise Statement of Errors Complained

of on Appeal in accordance with PA Rules of Appellate Procedure 1925(B).

Under Reargument, Petitioner provided evidence that he had filed the

1925(B) with the Clerk of Court. The Superior Court ignored this evidence and the

standard of proof for these situations.

In a second post-conviction petition, Petitioner argued that the state had

failed to meet its burden at the preliminary hearing stage, according to new state

law, and that Petitioner had newly discovered facts of trial counsel's legal and

addiction issues. This was dismissed as untimely.

Petitioner raised six (6) claims for federal habeas relief under §2254: the

four (4) claims from his first PCRA and the two (2) claims from his second PCRA.

the District Court, without ordering a response from the state, and after sua

sponte raising a procedural default defense to the §2254 application, dismissed

the application without giving Petitioner an opportunity to answer the procedural

defense.

Petitioner attempts to remedy this mistake and get relief have gone

unanswered since, culminating with this Court denying Writ of Certiorari on

November 6, 2023.

Petitioner now seeks rehearing from this Court.

REASONS MERITING REHEARING

1. No Fair Notice and Opportunity to Respond

The Third Circuit's decision not to grant certificate of appealability after the

District Court sua sponte raised a procedural defense to the §2254 application

and dismissed the application without giving Petitioner fair notice of the defense,

is in clear conflict with the precedent of this Court.

In Day v. McDonough, 126 S.Ct. 1675(2006), this Court

stated:

In sum, we hold that district court are permitted, but not obliged, to

consider, sua sponte, the timeliness of a state prisoner's habeas

petition. Of course, before acting on its own initiative, a court

must afford the parties fair notice and an opportunity to

present their positions.

Day @ 1684. (Emphasis added).

Here, there is not doubt that the District Court dismissed Petitioner's

habeas petition without giving "fair notice and opportunity" to respond. Id.

Furthermore, the Third Circuit Court of Appeals routinely grants certificates

of appealability in cases such as Petitioner's. See,

McKinley v. Superintendent of Rockview, 2022 US App LEXIS 27563

(3d Cir. 2022); United States v. Bendolph, 409 F.3d 155, 169(3d Cir. 2005)

(en banc); and Perez v. Sec'y Fla. Dep't or Corr., 947 F.3d 649, 654(11th Cir.

2020).

When Petitioner attempted to argue against the procedural; default in his

Motion to Alter or Amend, the District Court stated:

[P]etitioner did not assert any of the three arguments to excuse the

procedural default that he raises in the instant motion for

reconsideration prior to the court's dismissal of his petition, and the

court observing that motions for reconsideration may not be used to

raise new arguments that could have been raised before the issuance

of the order in question[. ]

Motion to Alter or Amend, 1/13/23 @ 2-3. The District Court never gave

Petitioner an opportunity to "assert any of the three arguments" against

procedural default before dismissal.

This Court recently held:

‘Of course, before acting on his own initiative, a court must afford the

parties fair notice and an opportunity to present their positions.’ This

lack of notice left Thomas without meaningful opportunity to dispute

the grounds on which the court reversed the District Court's decision

to grant him habeas relief. (Quoting Day)

Thomas v. Payne, 2021 US LEXIS 3726(2021).

Petitioner's arguments for cause and prejudice have never been evaluated

or addressed by any of the Third Circuit's courts.

3

Because the Third Circuit Court of Appeals, and the District Court have

obfuscated Petitioner's right of habeas corpus review under 28 U.S.C. §2241, et

seq. by failing to give him "fair notice and an opportunity" to respond to the

procedural defenses, this Court should grant the rehearing, and grant the Writ.

2. Petitioner did show cause and prejudice for procedural default.

This Court has held:

In all cases in which a state prisoner has defaulted his federal claims

in state court pursuant to an independent and adequate state

procedural rule; federal habeas review of the claims is barred unless

the prisoner can demonstrate cause for the default and actual

prejudice as a result of the alleg4ed violation of federal law, or

demonstrate that failure to consider the claims will result in a

fundamental miscarriage of justice.

Coleman v. Thompson, 111 S. Ct. 2546, 2565(1991).

In Martinez v. Ryan, 132 S. Ct. 1309, this Court extended cause to

claims of ineffective post-conviction counsel. "[i]neffective assistance of postcounsel may be cited as cause for the procedural default of an ineffective

assistance of trial counsel claim." Shinn v. Ramirez, 596 U.S. (2022).

In his §2254 petition, Petitioner's grounds for relief 1-4 were issues of

ineffective assistance of trial and/or PCRA counsel. These were the same four

issues that had been heard by the PCRA court, and raised on PCRA appeal. The

District Court found that all four of these issues were procedurally defaulted

because while these issues were raised in Petitioner's first, timely PCRA petition in

the state court, the were later deemed waived on PCRA appeal because the PCRA

court alleged Petitioner had not filed a 1925(B) statement. The Superior Court

found waiver of the issues.

Petitioner filed for reargument in the Superior Court, and provided evidence

in the form of DOC Cash Slips that he had served four copies of the 1925(B) on

the clerk of court of Dauphin County, as required.

To support application of the Mailbox Rule, a prisoner bears the

burden of proving delivery of [the filing] to prison authorities|. |]

Commonwealth v. Keffer, 2014 Pa. Super. Unpub. LEXIS 33026. This is the

legal standard because inmates can prove no more. An inmate's only ability is to

hand the mail to prison authorities, along with approved Cash Slips to pay for the

postage, and trust they will deliver the mail to the USPS for mailing.

‘Reasonable verifiable evidence' of timely mailing may include a cash

slip, certificate of mailing, certified mail, or affidavit of date of deposit

with prison authorities. Commonwealth Vv. Jones,

700 A.2d 423(Pa.1997).

Commonwealth v. Craig, 2020 pa. Super. LEXIS 291. See _ also,

Paris v. Comm. of PA, 2021 U.S. Dist. LEXIS 182512 (citing Jones and

Pennsylvania Rules of Appellate Procedure).

Unfortunately, ignoring this evidence after the PCRA court filed a statement

alleging the court had never received the 1925(B), the Superior Court again

found waiver and denied the appeal.

Setting aside that the District Court here failed to provide "fair notice and

an opportunity" to argue against the procedural default, Petitioner avers that he

has shown cause and prejudice for his procedural default.

While there doesn't appear to be any binding Third Circuit precedent, other

circuit court's opinions are instructive. In Hampton v._ Kelly,

1990 U.S. Dist. LEXIS 20850(E.D.Ny.1990), the Court held that a miscarriage of

justice occurs when a pro se_ prisoner made a good faith attempt to comply with

state procedures and failed through no fault of his own.

In Wiggins v. Clark, 2008 U.S. Dist. LEXIS 104363(E.D.Cal.2008:

Errors by the Court of their staff which impede a petitioner's efforts to

comply with a state's procedural rules has been found to constitute

"cause" to excuse a procedural bar. See, Hartman v. Bagely,

492 F.3d 347, 358(6th Cir. 2007); Robert v. Sutton, 217 F.3d 1337,

1340-41(11th Cir. 2000); Alexander v. Duggan, 841 F.2d 371,

374(11th Cir. 1988). In a similar case, the Tenth Circuit held that a

"failure of the clerk to provide [petitioner] with a certified copy made

compliance with the [state procedural rule] practically impossible,"

establishing "cause" to excuse procedural default.

Johnson v. Champion, 288 F.3d 1215, 1228(10th Cir. 2002).

Wiggins @ 10.

Petitioner's fifth and sixth claims in his §2254 application were,

respectively, due process and confrontation clause violations at his preliminary

hearing and that newly discovered evidence of trial counsel's depression,

addiction and his own legal issues at the time of Petitioner's trial proved that he

was incapable of litigating a first degree homicide case.

In dismissing the fifth claim, the District Court, and therefore the Third

Circuit, stated that petitioner has not established cause and prejudice because he

didn't raise the claim sooner. " Petitioner explained to the Court in his Motion to

Alter or Amend that state law prevented him from raising the issue sooner.

However, when the Pennsylvania Supreme Court decided

Commonwealth v. McClelland, 233 A.3d 717(Pa.2020), it reversed previous

6

law and said for the first time that "hearsay evidence alone is issufficient to

establish a prima facie case at a preliminary hearing." McClelland was decided

during the pendency of Petitioner's PCRA appeal for the first PCRA. By state law,

he could not raise the issue sooner.

The District Court said in relation to Petitioner's sixth issue that Petitioner

failed "to provide specific information as to when he discovered counsel's alleged

personal issues, [therefore, Petitioner] has failed to meet his burden to show that

an external factor impeded his ability to comply with the PCRA's statute of

limitations." Opinion @ 6.

Petitioner alleges that if the District Court had followed the dictates of

Day it would have reviewed Petitioner's allegations and found he had shown

cause for the procedural defaults that were outside of his control. Further, it

would have found that Petitioner is serving a life sentence for a crime he did not

commit and the issues in his §2254 petition deserve a merits review.

CONCLUSION

Therefore, for the stated reasons, this Court must grant Rehearing of its

judgment entered November 6, 2023, and issue a Writ of Certiorari to hold the

Third Circuit accountable for failing to properly apply the law of this Court,

ordering a merits review of the habeas application.

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Date Lahme Perkins

HW6401

SCI Frackville

1111 Altamont Blvd.

Frackville, PA 17931

No. 23-5528

IN THE SUPREME COURT OF THE UNITED STATES

Lahme Perkins,

Petitioner

Vv.

Laurel Harry, Secretary,

Pennsylvania Department of Corrections, et al.,

Respondent

CERTIFICATE OF GOOD FAITH

\

COMES NOW Petitioner, Lahme Perkins, pro se, and hereby makes

certification that his petition for rehearing is presented to this Court in Good faith

and pursuant to Rule 44. Petitioner further states the following:

1. This Court entered its judgment denying Petitioner a Writ of Certiorari

on November 6, 2023. Petitioner believes that he presents this Court with

adequate grounds to justify the granting of rehearing in this case and that said

petition is brought in good faith and not for delay of any sort.

2. Petitioner further believes that, based upon the law of this Court and

the facts of his case, Petitioner is entitled to relief that has been denied him.

3. Petitioner further believes that if the Third Circuit Courts are allowed

to continue to apply an incorrect standard under this Court's precedents, many

more people will be denied their constitutional rights to due process and a

legitimate review of their cases.

I declare under penalty of perjury that the foregoing is true and correct.

fp AL

[1-19-23 abs Lu tikd

Date Lahme Perkins

HW6401

SCI Frackville

1111 Altamont Blvd.

Frackville, PA 17931

No. 23-5528

IN THE SUPREME COURT OF THE UNITED STATES

Lahme Perkins,

Petitioner

Vv.

Laurel Harry, Secretary,

Pennsylvania Department of Corrections, et al.,

Respondent

CERTIFICATE OF SERVICE

I, Lahme Perkins, do hereby certify that I have on this day served true and

correct copies of the attached PETITION FOR REHEARING upon the persons

below by First Class postage paid mail.

Laurel Harry, Secretary DOC

1920 Technology Parkway

Mechanicsburg, PA 17050

Office of the Attorney General

Strawberry Square

16th Floor

Harrisburg, PA 17120

4 p #*) Lf

11-19-33 OQ nin a)

Date Lahme Perkins ~

HW6401

SCI Frackville

1111 Altamont Blvd.

Frackville, PA 17931