Petition for Writ of Certiorari — William H. Cornelius, Petitioner v. Florida

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IN THE

SUPREME COURT OF THE UNITED STATES

FILED

SEP 2 8 2023

WILLIAM H. CORNELIUS JR. - PETITIONER

VS.

STATE OF FLORIDA - RESPONDENT

ON APPEAL FROM THE 4th DISTRICT COURT OF APPEALS,

STATE OF FLORIDA

£0&&BCTki>

PETITION FOR A WRIT OF CERTIORARI

William H. Cornelius Jr. DC# WO 1064

South Bay Correctional

& Rehabilitation Facility

600 U.S. Highway 27 South

South Bay, Florida 33493

561-992-9505

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OUESTION(S) PRESENTED

1.)

IN LIGHT OF ALEXANDER HAMILTON’S ASSERTIONS IN “THE

FEDERALIST PAPERS” NO. 80, 1 IS IT THE OBLIGATION OF THE UNITED

STATES SUPREME COURT TO RESOLVE THE DISPUTE BETWEEN THE

CITIZENS OF FLORIDA AND THEIR JUDICIARY REGARDING THE STATE

SUPREME COURTS CLAIM THAT THE LEGISLATURE CANNOT FORCE THE

JUDICIARY TO OBEY THEIR ENACTED RULES OF COURT?

2.) IS TRIAL PROCEDURAL JURISDICTION AN INSEPERABLE ASPECT OF

SUBJECT MATTER JURISDICTION WHEREAS LEGISLATIVELY-ENACTED

PROCEDURAL RULES OF COURT MUST BE STRICTLY ADHERED TO IN

ORDER FOR A COURT TO OBTAIN JURISDICTION TO DECIDE A CASE?

3.) WAS THE APPELLATE COURTS FINDING Mr. CORNELIUS’ CHALLENGE

FRIVOLOUS, AND THEN THREATENING SANCTIONS, A VIOLATION OF HIS

1st AMENDMENT RIGHT TO PETITION THE GOVERNMENT TO REDRESS HIS

GRIEVANCES AND 14th AMENDMENT RIGHT TO DUE PROCESS OF LAW?

CAN APPELLATE “PROCEDURAL RULE BARS” BE USED TO AVOID

ADDRESSING THIS PETITIONERS TRIAL PROCEDURAL RULE PENALTY

INSTRUCTION DEPRIVATION IN LIGHT OF THE JURIES COMMENTS IN

GIBSON V. STATE? 2

4.) WAS THE JUDICIALLY AMENDED PROCEDURE RULE 3.390(A)

INVALIDATED WHEN THE FLORIDA LEGISLATURE REPEALED THE STATES

SUPERSESSION LAW F.S. 25.371 FOR VIOLATING THE NON-DELEGATION

DOCTRINE?

5.) ARE FLORIDA JURY INSTRUCTIONS SPECIFICALLY DESIGNED TO

DISCOURAGE JURY MITIGATION AN ASSAULT ON JURY SOVEREIGNTY AND

AN ABRIDGMENT OF THE 6th AMENDMENT RIGHT TO AN IMPARTIAL JURY?

6.) WILL COUNSEL BE ASSIGNED TO ARGUE THESE MERITS BEFORE THE

COURT?

1 «

FEDERAL JURISDICTION OUGHT TO EXTEND TO ALL THOSE CASES IN WHICH STATE TRIBUNALS

CANNOT BE SUPPOSE TO BE IMPARTIAL AND UNBIASED”

2 Gibson V. State, 721 So2d 363, (FI. 2nd DCA 1998); “IF WE KNEW THE LIFE PENALTY WE WOULD NOT HAVE

VOTED GUILTY FOR IT”

ii

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LIST OF PARTIES

[ x ] All parties appear in the caption of the case of the cover page.

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TABLE OF CONTENTS

OPINIONS BELOW.

(1)

JURISDICTION.

(2)

CONSTITUTIONAL AND STATUTORY PROVISION INVOLVED

(3)

STATEMENT OF CASE AND FACTS

(4)

REASON FOR GRANTING PETITION

(5)

CONCLUSION.

(30)

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INDEX OF APPENDICES

APPENDIX A

4TH District Court Of Appeals Per Curium Affirmation

APPENDIX B

.4TH Dist. Ct. Of Aps. frivolous ruling and threat of sanctions

APPENDIX C

.4TH District Court Of Appeals Rehearing Denial

APPENDIX D

15th Circuit Court Ruling

APPENDIX E

15th Circuit Rehearing Denial

APPENDIX F

.Supreme Court stare decisis dismissal of Discretionary Review

APPENDIX G

.Supreme court “All Writs” dismissal With dated stamped envelope

APPENDIX H

..15th Circuit Court Habeas Petition

APPENDIX I

. 15th Circuit Court Rehearing Request

APPENDIX J

4TH District Court Of Appeals Rehearing Request

APPENDIX K

.Notice to invoke the discretionary jurisdiction of the Supreme Court

APPENDIX L

.Supreme court all writs Petition Filed 4/25/23

APPENDIX M

First Supreme court Letter of Inquiry Re: all writs Petition

APPENDIX N

Second Supreme court Letter of Inquiry Re; all writs Petition

V

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

Arcadia Citrus..., V. Hollingsworth, 185 So2d 431 (FI. 1938) @ 433

7

Baker V. Carr, 369 U.S. 186 (1962)..................................................

3,25

Blakely V. Washington, 124 S.Ct. 2531 (2004)..................................

15,23

Chaffin V. Stynchcombe, 42 U.S. 17 (1973).......................................

26

Garcia V. Stewart, 906 So2d 1117 (Fla. 4th DCA 2005) @1123........

7

Gibson V. State, 721 So2d 363, (FI. 2nd DCA 1998)..........................

17

Jones V. United States, 119 S.Ct. 1215, (1999) 56 U.S. 245...............

.25, 26

Lovett V. Lovett, 112 So 768 (Fla. 1927) @ 776.................................

7

Massey V. David 979 So2d 93 (FI. 2008)..........................................

21,23

Mistretta V. United States, 109 S.Ct. 647,488 U.S. (U.S. Mo. 1969) @ U.S. 420... 13, 27

Rubino V. State, 6th DCA Case No. 6D23-0180 (2023)

11

Shady Grove V. Allstate..., 130 S.Ct. 1431, (2010)....

3

Simmons V. State 160 So2d 626 (FI. 1948).................

16, 20,23

SparfV. U.S. 156 U.S. 51 (1895).................................

....15,21

Teague V. Lane 489 U.S. 298 (1989)..... .....................

18

T.D. V. K.D. 747 So2d 456 (Fla. 4th DCA 1999).......

7

U.S. V. Butler, 297 U.S. 1 (1936)...............................

15

Whitman V. American..., 531 U.S. 457 (2001)...........

23

STATUTES AND RULES

F.S. 95.18........................

F.S. 918.10(1)........ .........

Fla.R.Crim.Proc. 3.390(a)

8

.PASSIM

PASSIM

OTHER

The Federalist Papers No. 78, 80, and 81......................................................

FI. HB Ch. 2012-116 Committee Substitute for HB 7055 Sect. 16....

U.S. HB 100-889............................................................................................

Robert Bork Best Seller “The Tempting of America” (1989) Pages 264-265

Sunstein Non-Delegation Canons, 67 Univ. Chic. Law Rev. 315 (2000).....

vi

PASSIM

27

27

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IN THE

Provided to South Bay Corr. and Rehab. Facility

on —/SLZ.Hy 2-3

SUPREME COURT OF THE UNITED STATES

tor mailing

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[X] For cases from state courts:

The opinion of the highest state court to review the merits appears at Appendix A_ to the

petition and is unpublished.

The opinion of the Fifteenth Judicial Circuit court appears as Appendix D to the petition

and is unpublished.

The opinion of the State Supreme Court appears at Appendix G to the petition and is

unpublished.

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JURISDICTION

[X ] For cases from state courts:.1

The date on which the highest state court decided my case was January 26. 2023

A copy of that decision appears at Appendix A

The date on which the state trial court decided my case was

&,

2022.

A copy of that decision appears at Appendix f>

The date on which the state supreme court decided my case was Sepb 6>j 2023.

A copy of that decision appears at Appendix G

1 "The Federalist Papers" No. 80, Judicial Powers Jurisdiction: Alexander Hamilton Par. 2: "The Judicial Authority of the

Union ought to extend to...all those cases in which the state tribunals cannot be supposed to be impartial and unbiased.

2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

1.) Article IV Section 4, United States Constitution “The Guarantee”.

“The United States shall guarantee to every state in this Union a Republican form of

government, ”2

2.) Republican Government principles of Separation of Powers;

Alexander Hamilton in “The Federalist Papers” No. 78 "...to avoid an arbitrary

discretion in the courts, it is indispensable that they should be bound down by strict rules

and precedents which serve to define and point out their duty in every particular case

that comes before them..." And in No. 80, Judicial Powers Jurisdiction: Par. 2: "The

Judicial Authority of the Union ought to extend to...all those cases in which the state

tribunals cannot be supposed to be impartial and unbiased". Followed by Paper No. 81,

at par. 8: "A legislature, without exceeding its province, cannot reverse a determination

once made in a particular case; though it may prescribe a new rule for future cases.

3This is the principle and it applies in all its consequences, exactly in the same manner

and extent. to the state governments, as to the national government now under

consideration. Not the least difference can be pointed out in any view of the subject."

3.) United States Constitution Amendment VI; “In all criminal prosecutions the accused

shall enjoy the right to a...Public trial...by an impartial jury... ”

4.) United States Constitution Amendment XIV, Section 1; “nor shall any state deprive

any person of life, liberty...without Due Process ofLaw... ”

5.) F.S. 918.10(1); “the judge must instruct the jury on the penalty for the offenses

charged”.

6.) Fl.R.Crim.P. 3.390(a).. ’’The judge must not instruct the jury on the penalty for the

offenses charged. ”

7.) F.S. 25.371: “Judicial rules supersede statutory rules ofcourt” Repealed July 1, 2012

in H.B. 2012-116

3 Baker V. Carr, 369 U.S. 186 (1962) "Not every Art. IV, Sect. 4, claim presents a non-judiciable political question".

Shady Grove... V. Allstate..., 130 S.Ct. 1431 (2010) at 1442 II B [5]; "Congress has unbridled power to prescribe rules of

court".

3

STATEMENT OF CASE AND FACTS

William Cornelius was a first time offender standing trial for a non-violent capital crime

based solely on a hostile victims credibility that a crime even occurred. This was due to

an evidentiary provision within the statute that states the victims testimony need not be

corroborated in a prosecution for the crime. At his trial the jury was prevented from

receiving a penalty instruction in accordance with F.S. 918.10(1) because it was

superseded by judicial rule 3.390(a). While his case was tolled on direct appeal the state

legislature repealed the supersession law that allowed judicial rules to supersede

legislatively enacted rules of court. Mr. Cornelius returned to the court after his active

appeals were resolved to challenge the validity of the procedural rule that prevented his

jury from being instructed on the penalty for the offences charged. In addition he

challenged the constitutionality of the evidentiary provision of his statute of conviction

that insulated the state from a JOA (Judgment of Acquittal). The trial court ruled he was

procedurally barred from filing the procedural rule deprivation claim, and on appeal the

appellate court affirmed the lower court’s ruling, but also threatened sanctions for filing

frivolous claims. The State supreme court denied a motion for discretionary review on

April 20, 2023. Mr. Cornelius filed an “All Writs” petition on April 25, 2023. The court

denied the petition by simply; sending 3. stare decisis denial ,

final denial was received on

€, 2023. This petition follows.

This

REASON FOR GRANTING PETITION

In light of Alexander Hamilton’s asserted separation of powers principles in “The

Federalist Papers” no. 78 and 81, trial procedural jurisdiction is an inseparable aspect of

subject matter jurisdiction whereas legislatively enacted procedural rules of court must

be strictly adhered to in order for a court to obtain jurisdiction to decide a case.

In light of alexander Hamilton’s assertions in “The Federalist Papers” No. 80, it is the

obligation of the United States Supreme Court to resolve the dispute between the citizens

of Florida and their judiciary, regarding the state supreme courts claim that the legislature

cannot force the judiciary to obey their enacted rules of court, as it reveals that the state

courts are clearly unable to be unbiased in deciding the issue.

The appellate courts finding Mr. Cornelius’ challenge frivolous, and then threatening

sanctions, is a clear violation of his 1st amendment right to petition the government to

redress his grievances and 14th amendment right to due process of law, and a clear

indication that the state courts cannot be supposed to be unbiased in deciding the issue.4

4«

FEDERAL JURISDICTION OUGHT TO EXTEND TO ALL THOSE CASES IN WHICH STATE TRIBUNALS

CANNOT BE SUPPOSE TO BE IMPARTIAL AND UNBIASED”

5

The appellate courts Per Curium Affirmed ruling, frivolous findings, and threat of

sanctions^ is in direct conflict with Alexander Hamilton’s assertions that under4fc*e

republican form of government proposed the judicial branch would be bound down by

strict rules governing every case that came before them.5 The court’s decisions in this

case is a results driven, rather than a constitutional based legal analysis that refuses to

recognize their legal obligation to strictly adhere to procedural rules.

This ruling triggers the United States Supreme Court’s jurisdiction as articulated

by Alexander Hamilton

in The Federalist Papers No.80; Powers of the Judiciary: Par. 2;

... ’’the judicial authority of the union ought to extend to these several descriptions

of cases: ...and lastly, to all those in which the state tribunals cannot be supposed to be

impartial and unbiased....when laws may have even prejudged the question and tied the

state courts down ”.

The courts used an appellate procedural rule bar to avoid addressing a trial

procedural rule deprivation claim. A ruling is necessary to identify by “Bright Line Rule”

whether or not procedural jurisdiction based upon strict adherence to procedural laws is

an inseparable aspect of subject matter jurisdiction required for a court to get the “Green

Light” to adjudicate a case.

5 Article IV, Section 4; "The Federalist Papers" No. 78 and par. 8 of No. 81

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FLORIDA'S THIRD SPECIES OF JURISDICTION

THE FLORIDA BAR JOURNAL; MARCH 2008

By Judge Scott Stephens

As a practical matter, rules of procedural jurisdiction have more in common with

routine procedural law than with subject matter jurisdiction. If a procedural error is

fundamental it can be raised at any time. And though procedural jurisdiction is not

subject matter jurisdiction it remains a legitimately jurisdictional concept in that it

directly addresses the Court's authority to hear and decide a dispute.

Jurisdiction of subject matter means that the Court's authority over a particular

incident, transaction, or circumstances that constitutes the subject matter of the case

has been activated, as required by "Procedural" Law. The applicable procedural law

affords the Court a green light to proceed under the circumstances. This is a distinct

category in Florida under the Subject Matter Jurisdiction Doctrine. All that remains is to

formally recognize procedural jurisdiction as a distinct existence within the Doctrine.

Subject Matter Jurisdiction, based upon a fundamental procedural law defect, at any

time, voids the judgment ab initio.

A Court's authority to render the judgment was identified as one of the three judicial

elements as long ago as Arcadia Citrus...V. Hollingsworth. 185 So. 431 @ 433 (Fla.

1938), with the other two being subject matter jurisdiction and personal jurisdiction.

Along with subject matter jurisdiction was the distinction of procedural jurisdictional

concepts. See: T.D. V. K.D.. 747 So2d 456 (Fla. 4 DCA 1999), which recognizes "Case

Jurisdiction" under subject matter or personal jurisdiction. And under Garcia V. Stewart.

906So2d 1117 @ 1123 (Fla. 4 DCA 2005), the court revived the Lovett notion that

procedural defects can overcome bars as they constitute essential aspects of subject

matter jurisdiction.

The Lovett Rule Doctrine that a court's jurisdiction must be properly invoked before it

can be exercised is still good law today. Lovett V. Lovett. 112 So 768 @776 Fla. 1927)

7

Most of our Honorable legislators are chained by conscience to the thankless task

of creating rules the majority of their constituents will agree to live under. They show up

every day, rain or shine, to fight the good fight. But moral dilemmas can exist within

laws that are crafted narrowly enough to protect people, but so broadly that they ensnare

the innocent. Luckily we have a trial system where the jury protects the public when

legislators err. Jurors can simply refuse to convict in the face of guilt to prevent

persecution.

This is the reason why the American system of due process of law is the envy of

less fortunate people around the globe. The reason we must jealously protect our system

from erosion. And why we need legislators who, by virtue of their personal integrity,

understand that the only sound "louder" than their call to duty is the "whisper" of

someone suffering injustice from their errors. Because unfortunately, some laws can cut

two ways, like the Florida Burglary Statute that transforms a misdemeanor trespass into a

felony burglary if a person "enters or attempts to enter a residence with the intent to

commit an offense therein". Hundreds of first time offenders are charged and convicted

of burglarizing their own homes in violation of domestic battery restraining orders due to

this overbroad terminology. Battery may seem like a formidable offence but in Florida

battery means unwanted touching. Thus, ostensibly, citizens are imprisoned for offending

someone's sensitivities.

8

Citizens like Miami resident Gerard Bonet whose love interest violated the

domestic battery restraining order herself by calling him to fix her mother's roof. After

helping her she once again ended the relationship. When this heartbroken SOB drunkenly

showed up banging on her apartment door at 3 AM to speak with her she called the

police. They promptly arrested Mr. Bonet for attempted Burglary of an occupied

dwelling; a second degree felony, even though he never attempted to enter the home.

At his trial the prosecutor told the jury that the violation of the restraining order

was the intended offense needed to qualify for the crime of Burglary, and because he

would’ve entered if the door were unlocked, the attempt was justified under the law. Mr.

Bonet was convicted and sentenced to 10 years in prison and 5 years’ probation at a cost

to taxpayers of over $270,000.00. If the jury knew of the difference in penalties between

attempted burglary of an occupied dwelling (15 years in prison) versus trespassing (60

days in jail) they assuredly would never have voted guilty for it!

The recent case of Ron Rubino is another example of our justice system gone

rogue. He was exercising his legal right to obtain possession of an abandoned,

uninhabitable trailer home under the Florida Statute §95.18, Adverse possession law.

Under sect. F.S.§95.18 (9) and (10) of this law it clearly states that: "trespass is the only

criminal charge that can be pursued if a person occupies or attempts to occupy a

residential structure solely by claim of adverse possession, prior to making a return to the

property appraiser." This law was enacted to help prevent blight from infecting

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residential neighborhoods. When Rubino was cleaning up the property the police came

along and, even though he told them he was squatting under the adverse possession law,

they arrested him for burglary because he stacked some of the junk he cleaned up in the

back of a truck.

The owner of the abandoned property passed away and the relative who was tasked

with cleaning out the personal possessions testified at trial that the only items left behind

were discarded junk. Yet, the prosecutor instmcted the jury that the "junk" property had

value over $50.00 at a flea market, thus, theft was the intent that supported the charge of

burglary. The appellate court upheld the conviction after determining that if they

overturned his conviction they oversaw burglars across the state justifying the crime by

claiming adverse possession. This is not the constitutionally based legal analysis

required. The court violated Mr. Rubino’s right to due process and nullified the

legislatures ability to combat blight. This is a clear violation of separation of powers.

Rubino is now serving a 15 year sentence for Burglary and petty theft for obeying

the adverse possession law simply because the trial judge, through intimidating jury

instructions, and outright censorship, prevented a reasonable assessment of the actual

crime by those tasked with determining guilt, and then denying him a constitutionally

based legal analysis on appeal.6

6 See: Rubino v State 6th DCA case no: 6D23-0180 (2023).

10

Didn’t former U. S. Supreme Court Nominee Robert Bork identify results

driven legal analysis as a violation of due process? 7

As part of the preliminary instruction the judge informed Mr. Rubino’s jury that

they could face sanctions including jail if they didn't follow the law and rules he laid out

and that no juror had the right to disobey the law as set down in the instructions. The final

instruction forbid using sympathy, which is a nefarious way of preventing the use of

reason.

If Rubino's jury was properly instructed on the penalty in accordance with

procedural law F.S. 918.10(1), they would have been encouraged to utilize their

mitigating power and state emphatically; this is the line, this nonsense stops right here!

They would've used their pardon powers to prevent injustice by not convicting him. or

finding him only guilty of trespass.

And therein lies the root of the issue that is filling our state prisons with lengthy,

unwarranted sentences. Criminal juries are censored, forbidden from receiving penalty

instructions, even though the law mandates giving one, and then told they will be jailed if

they don't obey the court’s interpretation of the law. Would the average citizen, those

who the laws are designed to protect, understand a restraining order is the kind of offence

referenced in the burglary statute, or that cleaning up junk in an attempt to adversely

possess an abandoned residence under the statute would make it a burglary? These are

reasonable determinations a jury is supposed to make, not a judge!

7 "The Tempting of America" Robert Bork Best Seller, Pgs.. 264, 265

11

Any credible civics instructor will explain that in our Republican Form of

Government, as articulated by its Constitutional Framers, the courts cannot force juries

to render verdicts in accordance with the judicial interpretation of a law. Verdicts are to

be rendered in accordance with the juror’s conscience. It’s an individual assessment in

accordance with case circumstances and contemporary standards of virtue and morality.

It's a shocking fact that Florida actually has a procedural law ordering trial judges

to give juries a penalty instruction. An instruction meant to encourage the use of reason

and common sense, but the Florida supreme court amended their corresponding rule to

forbid doing so. We currently have a law and a rule in conflict. I was taught in civics

class that in our Republican government the legislative authority predominated. What is

going on in Florida? Are our legislators sleeping?

Criminal Procedure Law Chapter 900 to 925; section 918.10(1): "...The trial judge

must instruct the jury on the penalty for the offenses charged"....

and contradicting

judicial rule 3.390(a), "...The trial judge must not instruct the jury on the penalty for the

offenses charged..."

This law was first adopted in its entirety, 8 but then judicially amended because it

encouraged jury pardons. 9 There now exists a conflict in violation of the due process of

In Re:3.390(al: 272 So2d 65(F11971)

9 In Re:3.390(a :416 So2d 1126(F1 19821: In Re:3.390<a 462 So2d 386(F1 1984)

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law. The state supreme court amended their rule regardless of the separation of powers

principles that forbid doing so.

In America, under the principles of separation of powers, the courts are

empowered to hold the law challenged beside the constitutional article invoked and

decide if it is constitutional or unconstitutional, and after having done so the courts duty

ends. The courts cannot abrogate duly enacted laws. Laws can only be amended by

revisers Bills, repealed, or found unconstitutional in a court of law. But even then the

courts can't obtain jurisdiction unless the law is challenged by someone with standing.

The courts cannot strike down a law on their own volition. This would lead to chaos!

In its ruling the recommending committee complained the amendment was

necessary to..." discourage that deplorable phenomenon known as a jury pardon." At the

time Chief justice Boyd warned that it was improper because the rule was adopted from a

law, but he was out-voted by the other justices who wanted to wrest control of state

courts from the legislature. Obviously none of those justices read " The Federalist Papers*

regarding the principles of separation of powers that specifically forbid legislating from

the bench, or as Late Justice Antonin Scalia stated; '‘the judiciary cannot create junior

varsity congresses!10

10 Mjstretta V. United States. 488 U.S. 361 (1989) dissenting opinion at U.S. 420

13

This power bestowed upon the court by the court has allowed Florida to lead the

nation in the amount of prisoners serving life without parole sentences; nearly 14,000 and

growing. A distinction that would be laudable if not for the suffering it causes. Not to

mention the cost to taxpayers of over $27,000.00 annually per prisoner. A cost that grows

exponentially as they age over 65 and require more medical care. This illegal practice of

jury censorship has Florida's prison system on course to becoming the largest hospice

chain in the world.

THE BOTTOM LINE

In a republican government the legislative authority necessarily predominates;

period.

Nobody is saying the judiciary cannot create their own procedural mles,

as long as those rules are consistent with acts of Congress; period.

The judiciary can only declare acts of Congress unconstitutional, “they cannot

amend or alter laws in any way; period.

The Florida Supreme Court justices who voted to abrogate legislatively enacted

rules committed an impeachable offense; period.

They simply did not have the jurisdiction to do so.

14

The appellate court in the Rubino Case performed an improper results driven legal

analysis to justify not overturning an obvious miscarriage of justice. Justifying thendecision because it would encourage Burglars across the state to use the adverse

possession law as a defense was simply an over simplification of legislative intent. If a so

called burglar was in an abandoned residence that, like in the Rubino case, was 5 years in

arrears in property taxes, they are simply not burglars; Period!

When the Oklahoma Supreme Court issued a stay of execution for convicted

murderer Clayton Lockett after his appeals were exhausted, Governor Mary Fallen

issued an executive order overriding the stay to execute him on schedule. The legislature

issued articles of impeachment against the Justices who voted for the stay because they

violated separation of powers by acting after their jurisdiction expired. The court

immediately reconvened and withdrew their stay. This is how the people protect

themselves from judicial branch oppression.

This is justice; period.

The standard jury instruction threatening to jail any juror who violates the rules,

and then stating that the rules forbid using sympathy, is dictating the role of the jury, and

may in fact be abridging a defendant's 6th amendment right to their impartiality.

The courts cannot dictate the role of the jury; period.

15

Hmmmm.... Didn't the United States Supreme Court say in 1895 that defendants

were entitled to verdicts of conscience? And didn't Antonin Scalia say in his 2004 Blakely

dictum that the judiciary could not dictate the role of the jury? And didn’t the U.S.

Supreme Court also state in 1936 the courts were required to hold the constitutional

article invoked next to the law challenged and decide if it is constitutional or not

constitutional? 11

THE EMPIRE OF REASON:

(Why This Emperor Has No Clothes)

There's a big difference between hard core criminality and crimes committed as a

result of a victim's culpability. This is essentially because most people behave in direct

response to actions; they react to stimuli. If the victims hadn't been misbehaving or acting

aggressively to begin with, the defendants wouldn't have responded the way they did. The

charges and sentences are supposed to reflect the distinguishing characteristics of the

criminal circumstances. For this reason the Florida legislature enacted the Criminal

Procedure Law Chapter 900 to 925. Section 918.10(1) of this law requires a penalty

instruction to encourage the juror's to use their compassionate sense of empathy and

reason in order to assure that prison sentences fit the circumstances of the crime. For

instance:

Mark Gibson was a 22 year old first time offender who was on trial for a non­

violent capital crime based solely on the victim accusation a crime occurred. The jury

11 SparfVU.S. 156 U.S. 51 (1895); Blakely V. Washington 124 S.Ct. 2531 (20041: U.S. V. Butler 297 U.S. 1 (1936) at 62

16

was hesitant to convict solely on the accusation of an obviously hostile victim, but just to

be safe they voted guilt, later claiming they did so just so the alleged victim could get the

help they felt was needed. As they were exiting the courtroom they overheard the judge

and prosecutor discussing the mandatory life sentence. They stopped in the middle of

their departure and after consulting with each other, approached the judge: "Your honor

did we just hear you correctly? Is this young man going to get a life sentence? Because if

we had known that sentence we would not have voted guilty for it!"

Didn’t the Florida Supreme Court call the penalty instruction a meaningless act they

couldn’t be forced to perform? 12

This results driven legal analysis cost a young man his life. .. .A meaningless act indeed!

I believe it's safe to assume that Mark Gibson did not get the impartial verdict of

conscience he is constitutionally entitled to. 13

So, there you have it, the average 64.5 year sentence meted out in Florida

Courtrooms is directly related to the illegal abrogation of this duly enacted procedural

law. This is why there are nearly 14,000 life without parole sentences. It’s because our

jurors are censored to discourage the use of their pardon powers by depriving them of

their procedural right to know the penalty. They do not know they are sending their

12 See: Simmons V. State. 160 So2d 626 (Fla. 1948).

13 See: Gibson v State. 721 So2d 363 (Fla. 2 DCA 1998)

17

fellow citizens to languish suffering in prisons under excessive penalties they would

never agree to, thus, this court should recognize procedural jurisdiction as an inseparable

part of the subject matter jurisdiction Doctrine. If legal procedures are not followed the

court cannot get the "Green Lighted Jurisdiction" required to adjudicate the case; period!

This will allow State prisoner's procedural deprivation claims to be exempt from

tolling provisions as well as frivolous determinations and threats of sanctions from

appellate courts. This will allow Florida prisoners to bring these claims in Habeas Corpus

petitions to the trial courts for relief at any time. It will enable prisoners like Mark Gibson

and William Cornelius to get relief under the Teague Retroactivity Doctrine, where if a

procedure like the amended rule 3.390(a) is found to be invalid, and the invalidated

procedure led to the conviction, or if the proper procedure would have resulted in an

acquittal; relief can be retroactively applied. 14 This will encourage State Appellate

Courts to do their duty and address the claims before they reach the federal courts.

The comments from the jury in the Gibson case, that if they had known the

mandatory life sentence they would never have voted guilt for it, proves the procedure's

deprivation was a substantive error. If the courts agree that the amended rule 3.390(a)

contradicting the penalty instruction mandate is invalid, they can order a new trial where

the right to the penalty instruction procedural law 918.10(1) would be enforced. In most

cases the prosecutors will offer plea deals that would be commensurate with the

14 Teague v Lane. 489 US 298 (1989).

18

circumstances of the crime. Thousands of prisoners like Gibson, Rubino, and Cornelius,

who are serving unwarranted sentences due to the over indicting efforts of prosecutors to

gain leverage in plea negotiations, 'can finally see justice served.

(MEMORANDUM OF LAW)

SUMMARY OF ARGUMENT.

Article IV, Sect. 4 of the IjJnited States Constitution guarantees every citizen of

every State a Republican form of government. A government consisting of three separate

branches; The Executive, Legislative, and Judicial. Our Constitution's Framers,

Alexander Hamilton, James Madison, and, John Jay, struggled against fierce opposition

j

from Anti-Federalists who enjoyed power and wealth under the articles of confederacy.

Pamphleteer Abraham Yates published Anti-Federalist Paper No. XI warning:

"Under the new government proposed there is nothing to prevent the judicial

branch from seizing jurisdiction ovter any act of the legislature and nullifying it. With this

power these unelected officials can mold the government into any form they pleased!"

In answer to this challenge James Madison noted in "The Federalist Papers" No.

51: "In a Republican Government the legislative authority necessarily predominates".

Followed by Alexander Hamilton who published "The Federalist Papers" No. 78

asserting that:

|

"To avoid an arbitrary discretion in the courts, it is indispensable that they should be

bound down by strict rules and precedents which serve to define and point out their duty

in every particular case that comes\ before them".

This means judges must strictly adljiere to rules of practice and procedure; period.

And in Paper No. 81, at par. 8: " A legislature, without exceeding it's province,

cannot reverse a determination on^e made in a particular case; though it may prescribe

a new rule for future cases. This is the principle and it applies in all its consequences,

19

exactly in the same manner and extent, to the state governments, as to the national

government now under consideration. Not the least difference can be pointed out in any

view of the subject."

This means the Federal and States legislatures have the power to make rules of court;

period.

And at par. 9 "It may in the last place be observed that the supposed danger of

judiciary encroachments on the legislative authority which has been upon many

occasions reiterated is in reality a phantom... While this ought to remove all

apprehensions on the subject it affords, at the same time, a cogent argument for

constituting in the Senate a courtfor the trial of impeachments."

This means if appointed judicial officials violate their oaths to obey the constitution they

can be impeached; period.

In 1948 the Florida Supreme court stated: "If the court is required to depart from

its course, and discuss matters having no bearing on the true function of the jury, the trial

is disconcerted and impeded. The penalty instruction is a meaningless procedure this

court cannot be forced to perform." 15

The court's dictating the true function of the jury is no different than dictating the

role of the jury. The courts claiming the legislature cannot force the court to perform a

procedure because they feel it is meaningless is wrong as it places the judiciary above the

legislative branch of government.

This opinion is antithetical to Republican Government separation of powers principles

articulated by James Madison in “The Federalist Papers” No. 51; period.

This opinion is an impeachable offense; period.

15 See: Simmons V. State. 160 So2d 626 (Fla. 1948).

20

Nonetheless, in 1971 the legislature enacted the Criminal Procedure Law Chapter

900 to 925, at sect. 918.10(1) reaffirming the people's desire to codify a jury penalty

instruction. Essentially enacting a "No, we really mean it" statute. The Supreme court

exercised their authority under FI. Const. Art. V, Sect. 2(a): "The Supreme court shall

adopt rules for the practice and procedure in all courts including the time for seeking

appellate review." The key word here being adopt. They adopted Sect. 918.10(1) in its

entirety as their corresponding rule 3.390(a). 16

In 1984 the Supreme court ruled to adopt the recommendation of their procedural

rules committee and amended their rule 3.390(a) to forbid the penalty instruction because

17 out of 20 committee members felt it unfairly encouraged the jury to use their pardon

powers.

They've bestowed upon themselves the power to adopt their own committee

rules by distorting the Constitutions meaning so that they can nullify legislative acts

contrary to separation of powers principles. This invalid premise was made clear in their

2008 decision in Massey V David: "Legislatedprocedural laws cannot encroach on this

courts rule making authority." This case was wrongly decided. It is antithetical to

republican government principles of separation of powers as articulated by Alexander

Hamilton in Papers No. 78 and 81. This opinion was an impeachable offence; period.

16 See: Re: 3.390(a), 272 So2d 65 (Fla. 1971).

17 See: In Re:3.390(al. 416 So2d 1126 (Fla. 982): 462 So2d 386 (Fla. 1984); See: Massev V David 979 So2d 93 (Fla.2008).

21

In the Sparf case the court noted how English courts would threaten to jail juries until

they reached a verdict in accordance with the court’s opinion of the law. Thus, United

States Supreme court determined that:

" We must holdfirmly to the doctrine that in the courts of the United States it is the duty of

the juries in criminal cases to take the law from the courts and apply the law to the facts

as they find them to be from the evidence. From the courts rests the responsibility of

declaring the law. Upon the jury the responsibility ofapplying the law so declared, to the

facts as they, upon their conscience, believe them to be. A court cannot give advance

instruction to find a verdict in accordance with the court's opinion of the law." 18

Florida judges threaten to jail any jurors who violate the rules of deliberation,

forbid their use of sympathy, and then instructs them on the court’s interpretation of the

law. Laws are supposed to be self-evident by their language so that citizens of common

intelligence can decipher their meanings. If it takes a lawyer to explain what behavior a

law proscribes it is either unconstitutionally overbroad or void for vagueness.

Telling jurors they can’t use sympathy when deliberating is no less intimidating

than the forbidden act of threatening to jail jurors if they don't reach a verdict. Juror

sovereignty requires that they know the penal jeopardy that would be the result of their

decisions as required by statutory procedural law. In Florida this is the only leverage a

defendant has to encourage his fellow citizens who have the sole power to convict him to

base their verdicts upon contemporary standards of virtue and justice.

18 Sparf V. US. 156 US 51 (1895)

22

It was only recently that Governor Scott repealed the cohabitation statute that had

been on the books since 1898. This law made living together out of wedlock punishable

by a 500 dollar fine and 60 days in jail. Floridian's have the legal right to have their jurors

informed of the jeopardy they would face as a result of a guilty verdict under this

Draconian law, or any law! They could find innocence in the face of guilt to reflect their

moral sense of justice based upon their contemporary community standards. We must not

forget that it is the jury, once duly sworn and seated, that has the sole power to do so.

Americans escaped the perplexities over which rights they were individually

entitled to —Natural Law or English Common Law— by giving two rights pre-eminent

importance. If the right.to representation and to trial by jury were left to operate in full

force, they would shelter nearly all other rights and liberties of the people. Meaning the

people musTmaintain control lrrtwoYorumsrthe jury-bbx~and“the”baHofbdx.

FLORIDA JURY INSTRUCTIONS SPECIFICALLY DESIGNED TO DISCOURAGE

JURY MITIGATION ARE AN ASSAULT ON JURY SOVEREIGNTY AND AN

ABRIDGMENT OF THE 6th AMENDMENT RIGHT TO AN IMPARTIAL JURY.

Justice Antonin Scalia articulated in the dictum of Blakely:

"The very reason the framers put jury trial guarantee into the constitution is that

they were unwilling to trust government to mark the role of the jury... the 6th amendment

by its terms is not a limitation on judicial power, but a reservation ofjury power. It limits

judicial power only to the extent that the claimedjudicial power infringes on the province

of the jury. The court cannot force a jury to render a verdict against their conscience

based upon the court’s opinion of the law." 19

19

(Thomas Greene: Verdict According to Conscience, Perspectives on the English Criminal Trial By Jury; 1200 to 1800

Chicago 1985 ); Blakely v Washington. 124 Set. 2531 (2004)

23

Compare these legal principles to the Florida supreme court's concepts of a

republican form of government and the judicial branch power to abrogate laws. As they

stated in the Simmons dictum;

"If the court is required to depart from its course and discuss matters having no

bearing on the true function of the jury, the trial is disconcerted and impeded. The

penalty instruction is a meaningless procedure that this court cannot be forced to

perform." 20

And the dictum of Massey: "Generally the legislature is empowered to enact

procedural law. Statute 57.01(2) is a procedural law that impermissibly encroaches on

this courts rule making authority."2'

The Florida constitution gives the supreme court the power to adopt rules of court,

not create them! This claimed authority does not exist! The Simmons court is not only

committing the forbidden act of marking the role of the jury but challenging the authority

of the legislature to enact rules of court as well.

The jury’s sovereignty is the very cornerstone of our justice system. Their pardon

power was exemplified in the 1735 seditious libel trial of colonial publisher John Peter

Zenger when the jury acquitted him in the face of guilt. His defense counsel argued;

“This is not the cause of a poor printer which you are now trying, it is the best cause; it is

the cause of liberty. And by an impartial and incorrupt verdict you have laid a noble

foundation for securing to yourselves and your posterity, the liberty of exposing and

apposing arbitrary government power.” The Zenger trial was the harbinger of the civil

20 Simmons V State, 160 So2d 626,(FI. 1948)

21 Massey V David 979 So2d 93 (Fla. 2008):

24

war and 1st amendment. The Florida standard jury instructions threatening jail if the

jurors do not follow the rules and forbidding the use of sympathy are a direct assault on

the juries sovereignty as well as the defendants 6th amendment right to the jurors

impartiality.

The Simmons case calling the penalty instruction a meaningless act was wrongly

decided. The court’s decision makes the Florida judicial branch dominant to the

legislative branch in opposition to Alexander Hamilton's separation of powers principles

which he clearly defined:

“ No man can be sure that he may not be tomorrow the victim of a spirit of

injustice, by which he may be a gainer today." 22 And: "... to avoid an arbitrary discretion

in the courts, it is indispensable that they should be bound down by strict rules and

precedents which serve to define and point out their duty in every particular case that

comes before them..."23

The federal courts are obligated to correct the Florida supreme court's obvious

encroachments onto the legislative branches powers to enact rules of court in this manner.

Alexander Hamilton articulated that the U. S. Supreme Courts ability to act when state

courts are biased rested in the constitutional powers by virtue of the United State

Constitution's Art. IV, Sect. 4's guarantee to a republican form of government. 24

The mandate of judicial compliance to procedural rules gives weight to the

procedural jurisdiction concept as a principle of subject matter jurisdiction in that the

"THE FEDERALIST PAPERS": No. 78 at paragraph 19

23 par. 21

24 BakerV. Carr. 369 U.S. 186 (1962),‘"THE FEDERALIST PAPERS": No. 80

25

courts authority over a particular incident, transaction or circumstance that constitutes the

subject matter of the case must be activated as required by procedural law, in order to

give it the green light to proceed. In the absence of that green light the court loses the

jurisdiction to adjudicate ab initio. 25

Justice Clarence Thomas equated the standard for competency for pleading guilty

or waiving the right to counsel with the competency standard for standing trial, and in

“44 Liquormart” showed his willingness to abandon precedent. In fact, late Justice

Antonin Scalia stated: “Justice Thomas doesn’t believe in stare decisis, period. If a

constitutional line of authority is wrong, he would say ‘Let’s get it right’. ” With his

willingness to reexamine constitutional doctrines, including the “Political Question

Doctrine” that seems to attach to any Art. IV Sect. 4 claims, this court would be well

within its jurisdictional authority to rule on this claim presented.26

Antonin Scalia was very vocal with his theories that constitutional language should

be interpreted according to the original meaning the relevant words had when they were

enacted into law. His common sense approach is required in cases such as this where trial

rules are disregarded but appellate rules are strictly adhered to.

Tunis Wartman declared in his 1800 Treatise concerning censorship:

25 Garcia v Stewart, 906 So2d 1117(4DCA 2005)@1123.

Scott Douglas Gerber, First Principles: The Jurisprudence of Clarence Thomas. (2002): Godinez V. Moran (1993):

"Originalism: The Lesser Evil" A Matter of Interpretation. Antonin Scalia 1988 lecture.; Federal Courts and The Law (1997)"The Rule of Law is a Law of Rules"; (1989 article)

26

"Society isn't the instrument of government created for the purpose of affording

grandeur and consequence to the latter. Government is, strictly speaking, the creature of

society originating in is discretion, and dependent upon its will. Society must, therefore,

necessarily possess the unlimited right to examine and to investigate. Knowledge is the

only guardian which can prevent us from becoming the vassals of tyranny and the dupes

of imposture."

Through jury censorship the Florida Supreme Court appears to have duped the

citizens out of their ability to control the courts. A practice that has led to innocents being

falsely convicted, and exposing many others to the bullying practices of prosecutors who

routinely over-indict criminal defendants in order to gain leverage in plea negotiations.

And make no mistake, the legislature fully intended that the jurors participate in this

process through the enactment of the penalty instruction procedural law.

THE JUDICIALLY AMENDED PROCEDURE RULE 3.390(a) WAS IN FACT

INVALIDATED WHEN THE FLORIDA LEGISLATURE REPEALED THE STATES

SUPERSESSION LAW F.S. 25.371 FOR VIOLATING THE NON-DELEGATION

DOCTRINE.

It's important to note that the State's Supersession law F.S. 25.371 was repealed in

2012.

This supersession law once allpwed judicial rules to supersede legislated rules of

court. When it was pointed out that this law allowed the judicial branch to legislate from

the bench it was repealed for violating the non-delegation doctrine.28

Likewise, U. S.

House Representative Kastenmeier attacked the federal

supersession law, arguing to have the clause removed for violating the non-delegation

27 HB Ch. 2012-116 Committee substitute for HB7055; sect. 16: as of July 1 2012

Sunstein Non-Delegation Canons, 67 Univ. Chic. Law Rev. (2000); Mistretta V. United States. 109 S.Ct. 647,488 U.S. 361

(U.S. Mo. 1989) at U.S. 420

27

doctrine, a separation of powers abridgment. This argument was voted down in the

Senate. The senators noted that the judiciary would not attempt to override legislative

acts. 29

State delegate Theophilus Parsons expressed the importance of having a defense

against arbitrary government oppression when he lectured the conventioneers at the 1788

Massachusetts convention:

" The people themselves have in their power effectually to resist government oppression

without being driven to an appeal to arms. Let him be considered a criminal by the

general government; yet only his fellow citizens can convict him. They are his jury, and,

if they pronounce him Innocent, not all the powers of Congress can hurt him. And

Innocent they certainly will pronounce it the supposed law he resisted or violated was an

act ofoppression

Alexander Hamilton was very specific about how the people were protected from

judicial branch oppression. The courts would be bound down by strict rules governing

every case that came before them. Therefore it's a straight forward course correction

when appellate courts are presented with procedural violation claims;

Send them back to the trial courts for the proper procedure; period.

The courts are currently standing behind Appellate Procedural tolling bars to avoid

addressing procedural deprivation claims. Appellate procedural tolls can only apply when

See. U.S. HB 100-889, Pg 3, Aug 26 1988, re: Title 28 part V Ch. 31, § 2072(b), with further comments on

pages 27 & 28, U.S.; (2 Elliot. Deb. 94;2 Bancroft, Hist. Const. 267)

28

a trial court has legally obtained jurisdiction to begin with. This is the very essence of our

14th amendment due process of law guarantees.

Thomas Jefferson cited Judicial abuses from the British King in our declaration of

independence as compelling reasons for gaining independence from his rule, each of

which mirrors what the Florida Judicial branch has done with the powers they've

bestowed upon themselves:

(1). He has refused his assent to laws the most wholesome and necessary for the public

good.

(The judge refuses to obey the

Penalty Instruction law)

(2). He has forbidden his governors to pass laws of immediate and pressing importance.

(The judiciary forbids the legislature from passing trial procedure laws of immediate and

pressing importance by abrogating them after their adoption)

(8). He has obstructed the administration ofjustice by refusing his assent to laws for

establishing judiciary powers.

(Claiming the legislature doesn't have the judicial power to mandate court rules under the

state constitution)

(18). For depriving us in many cases of the benefits of trial by jury.

(Censoring juries in order to control their powers)

(22). For suspending our own legislatures, and declaring themselves invested with power

to legislate for us in all cases whatsoever.

(By negating legislative mle making authority and making their rules supersede enacted

rules they've suspended the legislatures power and made themselves junior varsity

legislators with the power to rule from the bench)

An outlaw judiciary is irreconcilable with the American concept of independence.

Just as the executive branch cannot break the law to enforce the law, the courts cannot

29

violate the law to process the law. Judicial branch impropriety is a serious threat to the

integrity of our union. Not from outright illegal conduct, such as the obvious procedural

law abrogation practices noted here, but from its erosion of republican principles. The

slow chipping away over time. In sum, there is reason to suppose that in the present

circumstances, however peculiar their details, in our particular time and place, the

relative diminution of the juries significance does merit 6th amendment concerns.

Americans perfectly understand the lessen that the jury trial right could be lost not only

by gross denial,but by erosion.30

No court has ever had the power to call an act of Congress meaningless when it involves

liberty; period. 31 Patriot blood waters that tree, and the vainglorious vaporing’s of

intellectual elitists in robes will never uproot it. People will only tolerate abuse until they

draw the line and revolt. One needs only to study our past to see that future.

Alexander Hamilton was very specific about how the people were protected from

judicial branch oppression. The courts would be bound down by strict rules governing

every case that came before them. Therefore it's a straight forward course correction

when appellate courts are presented with procedural violation claims;

Respect the sovereignty of the jury; Send them back to the trial courts for the proper

procedure; period.

30 id at 248, Jones V. United States, 119 S.Ct. 1215, (1999) 56 U.S. 245

31 Chaffin V. Stvnchcombe. 412 U S. 17 f1973)

30

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully Submitted,

J

/s/ kSfMiJUHv ft\h-,

William H. Cornelius Jr. D(z# WO 1064

South Bay Correctional

& Rehabilitation Facility

600 U.S. Highway 27 South

South Bay, Florida 33493

561-992-9505

Certificate of Mailing

I certify that I, William Cornelius, DC# WO 1064, placed this petition for a writ of

certiorari into the hands of South Bay Correctional Facility officials for mailing to: The

Supreme Court Of The United States, First Street, NE, Washington D.C. 20543 on

^ 2023.

/s/

JL*.

William H. Cornelius Jr. DC# W01064

South Bay Correctional

& Rehabilitation Facility

600 U.S. Highway 27 South

South Bay, Florida 33493

561-992-9505

31