Petition for Writ of Certiorari — Timothy Fitzgerald Tolliver, Petitioner v. Cameron Harvanek, Warden

7 FILED

ee NOV 12 2025

No. QR =- & YU ff 7) OFFICE OF THE CLERK

0. —f ae y SUPREME COURT, U.S.

SUPREME COURT OF THE UNITED STATES

|

|

IN THE

— Tete ye — PETITIONER

(Your Name)

Vs.

Cometon Harvenek — RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

L).S. Court ot Apoesis Tenth Carcuit

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

“Nimedhy Te\\ \Ve

(Your Name)

\S j&O>d =... Whippeeru, \\ Lene

(Address)

broke. Oklahoma W95a5

(City, State, Yip Code)

WA

(Phone Number)

QUESTION(S) PRESENTED

. Whether the petitioner’s constitutional rights under the Fifth, Sixth,

and Fourteenth Amendments were violated when the state court

conducted a plea-withdrawal hearing in his absence, depriving him of

the right to be present at a critical stage of the proceeding?

. Whether counsel’s filing of a fraudulent document, purporting to

withdraw petitioner’s motion to withdraw plea without petitioner’s

knowledge or signature, constitutes structural error and a complete

breakdown of the adversarial process?

. Whether petitioner was denied effective assistance of counsel and due

process when counsel failed to perfect a direct appeal after petitioner

expressly requested one, and failed to preserve petitioner’s

constitutional claims?

. Whether Petitioner’s habeas petition, dismissed as untimely, should

have been equitably tolled due to attorney abandonment?

LIST OF PARTIES

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

[ ] All parties do not appear in the caption of the cover page. A list of all parties to

the proceeding in the court whose judgment is the subject of this petition is as

follows:

RELATED CASES

e Tolliver v. Harvenek, No. CIV-24-00104-PRW U.S. District Court for the

Western District of Oklahoma. Judgment entered Aug 2, 2024

@

e Tolliver v. Harvenek, No. 24-6184 U.S. Court of Appeals for the Tenth Circuit.

Judgment entered Sep. 8,2025

TABLE OF CONTENTS

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CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED...3

STATEMENT OF THE CAS Use siscsssasmnccssismeaams sca sssamannmens vs ameaamaes os 4,5

REASONS FOR GRANTING THE WRIT......... eee eee eee eee eee een eee 6,7,8,9,10,11

CONCLUSION... cece eee eee nee nee tee een eanea ease eee eea ees eaeeaeeaeneenee seasons 12

INDEX OF APPENDICES

APPENDIX A Decision of the United States Court of Appeals Tenth Circuit

Denying Review

APPENDIX B Letter from Tenth Circuit Denying Rehearing

APPENDIX C Decision of the United States District Court for the Western

District of Oklahoma Denying Review

APPENDIX D_ Order Dismissing Appeal Oklahoma Court of Criminal Appeals

APPENDIX E Order Denying Petition for Rehearing Oklahoma Court of

Criminal Appeals

APPENDIX F Order Denying Application For Post-Conviction Relief District

Court of Oklahoma County State of Oklahoma

APPENDIX G Order Denying Relief District Court of Oklahoma County

APPENDIX H Letter From Tim Tolliver to Ryan Sullivan Withdrawing Plea

APPENDIXI Fraudulent Document Filed Without Tim Tolliver Signature

APPENDIX J OSCN Record Showing Only Fraudulent Document Filed, and no

Record of Appearance of Tolliver

APPENDIX K Affidavit Showing Petitioner’s Actual Signature

TABLE OF AUTHORITIES CITED

CASES PAGE NUMBER

Kentucky v. Stincer, 482 U.S.730 (1987) 6

Diaz v. United States, 233 U.S. 442 (1912) 6

Maples v. Thomas, 565 U.S. 266 (2012) 7

Strickland v. Washington 466 U.S. 668 (1984) 8

Hazel-Atlas Co. v. Hartford Empire Co., 322 U.S. 238 (1944) 8

Holland v. Florida, 560 U.S. 631 (2010) 8

Chambers v. NASCO, Ince., 501 U.S. 32 (1991) 9

Lozada v. Deed, 498 U.S. 430 (1991) 11

United States v. Washington, 596 F.3d 926 (8 circuit 2010) 11

United States v. Cronic, 466 U.S. 648 (1984) 8,11

STATUTES AND RULES

1. Title 22 Okla., St. Ann, § 583 6

2. Title 22 Okla. St., § 1051, 517 7

3. Rule 60 (b)(6) 9

OTHER

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

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

OPINIONS BELOW

DW For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix AL to

the petition and is

[ ] reported at ; Or,

[ ] has been designated for publication but is not yet reported; or,

xX is unpublished.

The opinion of the United States district court appears at Appendix Bb to

the petition and is

[ ] reported at > OF,

[ ] has been designated for publication but is not yet reported; or,

TA is unpublished.

[ ] For eases from state courts:

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

Appendix to the petition and is

[ ] reported at > OF,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the

appears at Appendix

[ ] reported at > OF,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

court

to the petition and is

JURISDICTION

x) For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was 4h S .

[ ] No petition for rehearing was timely filed in my case.

A timely petition for rehearing was denied by the United States Court of

Appeals on the following date: Oey. 173 +2035 and a copy of the

order denying rehearing appears at Appendix Bo

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including (date) on (date)

in Application No. ____A ‘

The jurisdiction of this Court is invoked under 28 U.S. C. § 1254(1).

[ ] For cases from state courts:

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

A copy of that decision appears at Appendix

[ ] A timely petition for rehearing was thereafter denied on the following date:

, and a copy of the order denying rehearing

appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including (date) on (date) in

Application No. __A

The jurisdiction of this Court is invoked under 28 U.S. C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

. US Const., Amendment V —

. US Const., Amendment VI — Right to Effective Counsel

. US Const., Amendment XIV — Due Process of Law

. OK Const., Art. 2, § 7

. OK Const., Art. 2, § 20

. Title 22 Okla., St. Ann, § 583

. Title 22 Okla. St., § 1051, 517

STATEMENT OF THE CASE

The unique facts and circumstances of Petitioner’s case indicate that his

right of Due Process, and Effective Assistance of Counsel were violated.

“Petitioner was convicted in the District Court of Oklahoma County following

a plea on the 9» of April, 2021 that he sought to withdraw the same day it

was entered (Appendix E). Petitioner personally wrote to the trial court

seeking withdrawal of the plea this was entered into record on the 14¢ of

April, 2021. On April 20‘ 2021 the day of the hearing petitioner argued with

counsel to withdraw the plea, and go to trial. Counsel informed petitioner

that if he went to trial “he would die in prison. Petitioner informed counsel he

wanted new representation. Counsel then left upset. However, without

petitioner’s presence, consent, knowledge, or signature counsel filed a

document (Appendix F) stating that petitioner “withdrew his motion to

withdraw plea.” At which time the petitioner was in a holding cell waiting for

his hearing, unrepresented, unaware of counsel’s actions, and never taken

before the court.

The court record (OSCN Appendix G) shows no hearing transcript on

appearance record by petitioner on that date. The only filing was the

fraudulent document bearing petitioner’s typed name and scribbled line

purporting to be his signature. Petitioner was not notified or present.

Petitioner was then transferred to state custody unaware this had occurred.

Petitioner’s subsequent efforts to appeal were obstructed by counsel’s

abandoment. Counsel failed to perfect the appeal or advise petitioner of his

right to appeal within the 10-day period following the denial of withdrawal.

The petitioner was not aware of this until arriving in state custody.

Petitioner could not file his appeal until the Covid lockdown was lifted on

state correctional facilities, due to no access to the Institutional law library.

The Oklahoma County Court later relied on the fraudulent filing to deny all

relief, asserting-falsely-that petitioner was “present and signed in open

court.”

Petitioner’s Federal Habeas Corpus in the Western District of Oklahoma

(Case No. CIV-24-00104-PRW) was denied on August 2, 2024. The Tenth

Circuit denied Certificate of Appealability on September 8, 2025, noting

petitioner “failed to cite authority” on the presence issue but not disputing

the factual record that petitioner was absent.”

Petitioner has a right to Due Process, and Effective Assistance of

Counsel petitioner’s Fifth, Sixth, and Fourteenth Amendments were

Violated.

I.

it.

REASON FOR GRANTING PETITION

The right to be present at a critical stage is a fundamental constitutional

guarantee.

Under the Fifth, Sixth, and Fourteenth Amendments, as well as Okla. Const.,

Art. 2,§ 7, 20; Title 22 Okla. St. Ann. §583, a defendant must be present at every

critical stage of a criminal proceeding (Kentucky v. Stincer, 482 U.S. 730 (1987);

Diaz v. United States, 223 U.S. 442 (1912). A plea-withdrawal hearing- where

the validity of the conviction itself is challenged-is unquestionably such a stage.

By proceeding without petitioner, the state court violated this long-settled

principle. The record reflects no notice, hearing, or signed waiver of appearance

see (Appendix J). A court’s reliance on a document of disputed authenticity to

close review of a plea is structural error, undermining the integrity of the entire

proceeding.

Counsel’s unauthorized withdrawal constitutes abandonment under Supreme

Court precedent.

This court held in Maples v. Thomas, 565 U.S. 266 (2012), that when counsel

effectively abandons a client-acting without authority and leaving the defendant

unrepresented-such abandonment is cause to excuse procedural default. Here,

counsel’s filing of a false withdrawal (Appendix H), and counsel’s failure to

perfect appeal as requested, coupled with the state’s misrepresentation that

petitioner was “present,” is equivalent to constructive abandonment.

Acts contrary to the client’s interest or ceases to represent him-creates

“extraordinary circumstances” warranting equitable tolling. Here trial counsel

filed a fraudulent document, without Petitioner’s knowledge or consent,

purporting to withdraw Petitioner’s motion to withdraw plea. The document

contained an illegible scribble (Appendix I) and was never acknowledged in open

court (Appendix J), in direct violation of Oklahoma law and ethical standards.

(Title 22 Okla. St. § 1051, 517) any pleading, motion, or waiver that a

defendant’s substantial rights-especially one waiving appeal or withdrawing a

plea- must be: personally signed by the defendant, and acknowledged in open

court on the record. That means: the document should have your handwritten

signature, not a squiggle, initial, or typed name. The judge should have asked in

open court whether you read, understood, and agreed to it. The transcript should

clearly reflect your presence and acknowledgement. The document should have

been sworn or verified if the document purported to be your statement, or your

decision.

III.

This misconduct deprived petitioner of both notice and meaningful

representation, violating Strickland v. Washington, 466 U.S. 668 (1984), and

Cronic v. United States, 466 U.S. 648 (1984). Such conduct is more than mere

negligence; it constitutes a complete breakdown of representation and fraud

upon the court under Hazel-Atlas Co. v. Hartford-Empire Co., 322 U.S. 238

(1944). Hazel-Atlas holds that “(1) an intentional fraud i.e. (the forged

signature); (2) by an officer of the court (Ryan Sullivan); (3) which is directed at

the court itselfi.e. (forged withdraw agreement to Oklahoma County District

Court), and (4) in fact deceives the court.” Because counsel’s unauthorized filing

directly caused the procedural default, Petitioner cannot be charged with its

consequences.

Equitable Tolling applies where Petitioner diligently pursued his rights.

The equitable tolling doctrine recognized in Holland v. Florida, 560 U.S. 631

(2010), applies when a petitioner acts with reasonable diligence but is prevented

from filing timely by extraordinary circumstances beyond his control.

Petitioner acted diligently: immediately after discovering the fraudulent filing

and learning that his motion was denied in absentia, he sought review through

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every available state and federal avenue, including the instant habeas corpus

petition. The lapse in timing arose solely from counsel’s deceit and the courts’

reliance on falsified records, not from Petitioner’s inaction.

IV. Fraud upon the Court nullifies any time bar.

Under Hazel-Atlas and Chambers v. NASCO, Inc., 501 U.S. 32 (1991), fraud

upon the court renders a judgement void. Fraud destroys the finality that

statutes of limitation protect. Where the judgement itself was procured through

deceit, the limitation period cannot shield a fraudulent result.

Because the fraudulent “withdrawal” document was never signed by Petitioner,

and the state court falsely recorded that petitioner was present when he was not,

the underlying judgement rests on fraud. Such deception vitiates the limitation

period under Rule 60(b)(6) and this court’s equitable jurisprudence.

V. COVID-19 lockdowns and lack of law library access prevented timely filing.

VI.

In addition to attorney abandonment and fraud, Petitioner faced extraordinary

circumstances caused by the COVID-19 pandemic. Upon entering custody in

June 2021, Petitioner was subject to continuous institutional lockdowns and

restricted movement through at least May 2022. During this period, the facility’s

law library was closed or severely limited, and inmates were prohibited from

accessing legal materials or communicating with outside counsel.

Petitioner remained diligent throughout this period, submitting multiple written

requests for legal access, and attempting to prepare filing despite the total

shutdown of legal services. The delay from mid-2021 to mid-2022 was caused by

pandemic restrictions, not neglect.

Under these circumstances, equitable tolling applies. The statue of limitations

must therefore be extended to account for the period of official lockdown and

denial of legal resources.

The lower court’s refusal to address these constitutional violations conflicts

with decisions of other circuits and this Court.

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VIL.

The Tenth Circuit denied a COA solely because petitioner “provided no record

citation,” ignoring that (a) the state court record itself supports his claim, failure

to cite the record cannot bar review where the omission was the product of

attorney abandonment. Petitioner provided the record-specifically the OSCN

docket (Appendix J) showing no hearing transcript and only the fraudulent

filing-but prior counsel failed to cite it. Under Lozada v. Deeds, 498 U.S. 430

(1991), ineffective assistance in failing to perfect or support an appeal excuses

procedural default. This strict dismissal creates a direct conflict with other

circuits that have recognized similar absence-of-presence claims as meriting

evidentiary hearings (see, e.g., United States v. Washington, 596 F.3d 926 (8th

circuit 2010)).

The interests of justice require review on the merits.

This case involves more than procedural delay; it concerns the integrity of the

judicial process. The Constitution does not permit a conviction or plea to stand

where it was sustained through falsified documents and a defendant’s absence

from a critical stage. See United States v. Cronic, 466 U.S. 648 (1984).

Fundamental fairness demands that this Court set aside the time bar and

consider Petitioner’s claim on its merits.

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CONCLUSION

Petitioner respectfully asks that this Court grant the writ of Certiorari, reverse the

judgment, below, and remand with instructions to:

1. Vacate the conviction due to Constitutional violations; or, in the alternative,

2. Remand for an evidentiary hearing or new trial consistent with due process.

Respectfully Submitted,

/s/ LEE

a

Tim Tolliver, Petitioner Pro Se Doc# © 16 2.2¢

Howard McLeod Correctional Center

19603 E. Whippoorwill Lane

Atoka, Oklahoma 74525

Date: _//- 10-3

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