ISSUES RAISED IN EMERGENCY PETITION FOR HABEAS CORPUS, IMMEDIATE RELEASE, DOUBLE JEOPARDY, FALSE IMPRISONMENT, LACK OF TRIAL COURT’S JURISDICTION TO IMPOSE SENTENCE PURSUANT TO TERRON GERHARD DIZZLEY V. WARDEN WILLIAM LANGDON, TONYA JAMES, AND COMMISSIONER OF THE SOUTH CAROLINA DEPARTMENT OF CORRECTIONS BRYAN STIRLING; CASE NO. 2024-001023,  Filed on June 18, 2024

STATEMENT OF ISSUES

ARGUMENT AND AUTHORITIES

DOUBLE JEOPARDY

Standard for Evaluating Judgments of Acquittals for Purposes of

Double Jeopardy

The controlling U.S. Supreme Court cases which establishes the standard that "must" be followed by a reviewing court when evaluating a judge's ruling to determine whether it is a judgment of acquittal are: United States v. Martin Linen Supply Co., 430 U.S. 564 (1977), “The U.S. Supreme Court, Mr. Justice Brennan held that double jeopardy clause barred appeal by U.S. from judgments of acquittal entered under Rule 29(c) following discharge of jury which had been unable to agree on verdict in criminal contempt trial. Affirmed. What constitutes an “acquittal” for purposes of applications of Double Jeopardy Clause, is not to be controlled by the form of the judge’s actions; rather, we must determine whether the ruling of the judge, whatever it’s label, represents a resolution, correct or not, of some or all the factual elements of the offense charged. The court made only too clear it’s belief that the prosecution was “the weakest (contempt case that) I’ve ever seen.” In entering the judgment of acquittal, the court also recorded its view that “the government has failed to prove the material allegations beyond a reasonable doubt.” Thus, it is plain that the District Court in this case evaluated the Government’s evidence and determined that it was legally insufficient to sustain a conviction. The Court of Appeals concluded that this determination of insufficiency of evidence triggered double jeopardy protection. Although retrial is sometimes permissible after a mistrial is declared but no verdict or judgment has been entered, the verdict of acquittal foreclosed retrial and thus barred appellate review.” Evans v. Michigan, 568 U.S. 313 (2013), “Labels do not control the analysis of whether a decision dismissing a criminal case bars retrial under double jeopardy clause, rather the substance of the court decision does. The U.S. Supreme Court, Justice Sotomayor, held that midtrial directed verdict and dismissal, based on trial court’s erroneous requirement of an extra element for the charge offence, was “acquittal” for double jeopardy purposes. An acquittal for double jeopardy purposes includes a ruling by the court that the evidence is insufficient to convict, a factual finding that necessarily establishes the criminal culpability, and other rulings which relates to the ultimate question of guilt or innocence. Most relevant here, an “acquittal encompasses any ruling that the prosecution’s proof is insufficient to establish criminal liability for an offence. Here we know that trial court acquitted Evans, not because it incanted the word, “acquit” (which it did not) but because it acted on its view that the prosecution had failed to prove its case.” Quoting U. S. v. Martin Linen Supply Co., 430 U.S. 564 (1977)." See Burks v. United States, 437 U.S. 1 (1978); Hudson v. Louisiana, 450 U.S. 40 (1981).

Standard for Distinguishing Between Mistrials and Judgments of Acquittals for Purposes of Double Jeopardy

The U.S. Supreme Court case which establishes the standard that "must" be followed by a reviewing court for distinguishing between a mistrial and a judgment of acquittal for purposes of double jeopardy is, U.S. v. Scott, 437 U.S. 82 (1978). See: Evans v. Michigan, 568 U.S. 313 (2013), quoting Scott, "an acquittal includes" a ruling by the court that the evidence is insufficient to convict," a "factual finding that necessarily establishes the criminal defendant's lack of criminal culpability," and any other "ruling which relates to the ultimate question of guilt or innocence." Scott, 437 U.S., at 91, 98, and n. 11, 98 S. Ct. 2186. These sorts of substantive rulings stand apart from procedural rulings that may also terminate a case midtrial. Which we generally refer to as dismissals or mistrials. Procedural dismissals include rulings on questions that "are unrelated to factual guilt or innocence," but "which serve other purposes," including "a legal judgment that a defendant, although criminally culpable, may not be punished" because of some problem like an error with the indictment. This ruling was not a dismissal on procedural grounds "unrelated to factual guilt or innocence," like the question in Scott, but rather a determination that the State had failed to prove its case. Under our precedents, then, Evans was acquitted." Lee v. U.S., 432 U.S 23 (1977), “Questions as to whether double jeopardy clause prohibits retrial after the case has been terminated, after jeopardy has attached, without a finding on the merits does not depend upon whether the court labels its action a dismissal or declaration of “mistrial” but rather whether the order contemplates an end to all prosecution of the defendant for the offense charged.”

Standard for Evaluating Whether a Retrial After a Ruling Declaring a Mistrial Would Violate Double Jeopardy Rights

A ruling from a judge declaring a mistrial, sua sponte, without the defendant's consent, does not automatically take away the defendant's rights under the Double Jeopardy Clause, and allow the State to retry the case. The controlling cases which set forth the standard that "must" be applied when determining whether a retrial following a ruling declaring a mistrial would violate a defendants Fifth Amendment rights under the Double Jeopardy Clause, establishes that, such rulings "must" be evaluated pursuant to the "manifest necessity" test. See: U.S. v. Perez, 22 U.S. 579 (1824); U.S. v. Jorn, 400 U.S. 470 (1971): United States v. Sanford, 429 U.S. 14 (1976); State v. Bilton, 156 S.C. 324 (1930, "Discharging of jury without defendant's consent for reason legally insufficient and without absolute necessity, is equivalent to acquittal, and bars subsequent indictment for same offense." State v. Prince, 279 S.C. 30 (1983); State v. Robinson, 360 S.C. 187 (2004); Buff v. S.C. Dep't of Transp., 342 S.C. 416 (2000); State v. Rowlands, 343 S.C. 454 (2000); U.S. v. Horn, 583 F. 2d 1124 (1978).

GROUND 1

JUDGMENT OF ACQUITTAL, DOUBLE JEOPARDY

I. The trial judge's ruling in Petitioner's first trial of 2012, discharging his jury on the grounds that the state failed to meet their "burden of proof" to convict him was a "judgment of acquittal" for purposes of double jeopardy which barred Petitioner's second trial of 2014. Therefore, the Georgetown County Solicitor's Office had no jurisdiction to try Petitioner's again in 2014 for the same offense, and, therefore, the sentence imposed on Petitioner was without jurisdiction and holds no legal authority for the SCDC to hold him in prison, which is false imprisonment.

Statement of Facts

It has been established by the Supreme Court of the United States for over "one hundred and fifty (150) years" that a sentence imposed on a person which violates the Fifth Amendment Double Jeopardy Clause is "void for want of power" to hold the party a prisoner and he must be discharged. See: Exparte Lange, 85 U.S. 163 (1873), "A second judgment of the same verdict is, under such circumstances, "void for want of power," and holds no authority to hold the party a prisoner, and he must be discharged."

Petitioner contends that after the prosecution rested its case in his first unlawful trial of 2012, the Honorable Judge Baxley gave the following jury charge. See: Trial Transcript of 2012, Court Reporter, Krystal Smith, Tr. P. 74, L. 8 – 25, citing from 20 – 25). “In this state, according to the Constitution, the prosecution must prove their case to the standard of proof we call beyond a reasonable doubt, which is - that is before a finding of guilt may occur, and if the state failed to meet this high burden and it is a high burden, the defendant is entitled to an acquittal.”

On August 30, 2012, after only three to four hours of deliberations, the Honorable Judge Baxley received a note from the jury that they were unable to reach a decision. Judge Baxley then spontaneously declared a mistrial, after stating the following: See: Transcript of 2012 trial ( by Court Reporter, Grace Hurley). Ruling of the Honorable Judge Michael Baxley. Pages 314, L. 1 – 18 through Pages 315, L.1 – 8. “....I’ve received a message that tells me that the jury is still deadlocked and unable to reach a decision in this case and I want to, first of all, tell you one or two things that I have on my mind and heart about this matter. First of all, I don’t want you to think in any way that your exercise as jurors have been a failure on your part because you could not reach a verdict. That’s not a failure on your part. That really the strength of our system because we bring diverse citizens from different backgrounds all from the same community to hear a set of facts and make a decision to whether or not in criminal court a person is guilty or innocent.

Now what you’ve told us is that you can’t’ reach a unanimous decision, and I would say to you that that’s not a failure on your part. That’s actually a strong message to the prosecution that they are unable to meet the “burden of proof” to the extent that they can bring back a unanimous verdict.

Now, the way this process actually works is it is up to the Solicitor as to whether they will dismiss the charges or whether they will retry this case or perhaps redevelop the charge in some way and bring a separate charge of some kind and try that. It’s a - the decision rests with the Solicitor. It’s not within the control of the Defendant, but what’s going to happen here is the Court is going to declare a “mistrial,” but I don’t want to you believe in any way, zero way, that somehow you are responsible for that, because you are not. You’re given a set of "facts" that were the best that a state could adduce from what happened and what they were able to determine, they put that up to you and you brought back a wise, common-sense decision that you simply could not agree upon it. There is a message in that and so you’ve accomplished your purpose."

Therefore, according to Judge Baxley’s own charge on the law to the jury, if the prosecution failed to meet their "burden of proof" to convict Petitioner, he was entitled to an acquittal. Moreover, according to Judge Baxley’s own ruling, that the prosecution failed to meet the "burden of proof" to convict Petitioner, and, according to clearly established state and federal law, that ruling was a "judgment of acquittal."

Petitioner contends that after the Honorable Judge Baxley had determined that “the prosecution that they are unable to meet the “burden of proof” to the extent that they can bring back a unanimous verdict,” in his comments leading up to declaring a mistrial stating that: “Now, the way this process actually works is it is up to the Solicitor as to whether they will dismiss the charge or whether they will retry this case or perhaps redevelop the charge in some way and bring a separate charge of some kind and try that. It’s a – the decision rests with the Solicitor,” was contrary to U.S. Supreme Court law, and is “not” how the process actually works after the trial court has determined that the prosecution has failed to meet the “burden of proof.”

It has been established by the U.S. Supreme Court for over "forty-five (45) years," in Burks v. U.S., 437 U.S. 1 (1978), that such rulings as Judge Baxley's, in Petitioner's first trial, discharging his jury on the grounds that the prosecution failed to meet their "burden of proof" was an acquittal which established his "innocence" and "lack of criminal culpability" to have committed the offense charged, and by declaring a mistrial and affording the prosecution another opportunity to try Petitioner again for the same offense after finding that the prosecution failed to meet their "burden of proof" to convict him, violated his Fifth Amendment rights under the Double Jeopardy Clause. Burks, overruled prior decisions in Bryan v. U.S., 338 U.S. 552 (1960); Yates v. U.S., 354 U.S. 298 (1957); and Forman v. U.S., 361 U.S. 416 (1960), which were similar to Judge Baxley's ruling in Petitioner's case. These cases established that a judge had the discretion, after establishing that the prosecution failed to meet their "burden of proof," or that there was "insufficient evidence" to convict, to either enter a verdict of acquittal, or order a new trial. Burks overruled these cases establishing that once a reviewing court has found that the evidence is legally insufficient, the "only" just remedy is to enter a verdict of acquittal. See: Burks v. United States, 437 U.S. 1 (1978), "It is unquestionably true that the Court of Appeals' decision "represent[d] a resolution, correct or not, of some or all of the factual elements of the offense charged." United State v. Martin Linen Supply Co., 430 U.S. 564 (1977). By deciding that the Government had failed to come forward with sufficient "proof" of petitioner's capacity to be responsible for criminal acts, that court was clearly saying that Burks' criminal culpability had not been established. If the District Court had so held in the first instance, as the reviewing court said it should have done, a judgment of acquittal would have been entered and, of course petitioner could not be tried again for the same offense. The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. The Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient, and the “only” just remedy available for that court is the direction of a judgment of acquittal.”

The Honorable Judge Baxley, after making a ruling in Petitioner's first trial of 2012, that the Georgetown County Solicitor's Office failed to meet the “burden of proof” to the extent that they could bring back a unanimous verdict as the grounds for discharging his jury, the “only” just remedy available according to The United States Supreme Court in Burks, was for the Honorable Judge Baxley to direct a judgment of acquittal, not a mistrial to afford the Georgetown County Solicitor's Office another opportunity to attempt to meet their burden of proof. Therefore, the Honorable Judge Baxley’s ruling was an acquittal despite his mistaken understanding of the “only” legal remedy required when the reviewing court has found that the state failed to meet their burden of proof, which is, to enter a verdict of acquittal.

SUBSTANCE OF TRIAL JUDGE’S STATEMENTS WAS AN ACQUITTAL

Freer v. Dugger, 935 F. 2d 213 (1991, 11th Cir ), “In determining whether the trial judge’s ruling was an acquittal based on insufficiency of evidence as the district court held, this Court must focus on the substance of the ruling not its form. The court must consider whether the ruling in defendant’s favor was actually an acquittal even though the trial court characterized it otherwise. If the trial court “evaluated the Government’s evidence and determined that it was legally insufficient to sustain a conviction, “double jeopardy” is triggered. The question, then, is whether the substance of the court’s judgment was an acquittal, even though in form the court granted a new trial.”

Petitioner contends that Freer v. Dugger, 935 F. 2d 213 (1991, 11th Cir.); Burks v. U.S., 437 U.S. 1 (1978); Hudson v. Louisiana, 450 U. S. 40 (1981); U. S. v. Martin Linen Supply Co., 430 U. S. 40 (1981); and U. S. v. Scott, 437 U. S. 82 (1978), is particularly instructive pursuant to his case on “judgments of acquittals,” the meaning of “insufficiency” and “substance over form,” for purposes of double jeopardy.

In Freer v. Dugger, 935 F. 2d 213 (1991, 11th Cir.), “Appellee Albert Herman Freer was indicted on charges of first degree murder and armed robbery in the Circuit Court of Escambia County, Florida. At the end of the first trial the jury returned a verdict of guilty to a lesser included offense of second degree murder and grand theft ….. At a hearing held on defendant’s motion for a judgment of acquittal, defense counsel argued that the state failed to prove its case beyond a reasonable doubt. The trial judge after hearing arguments on both sides, ruled that he would set aside the verdict. At this time the state responded, “If the court is in consideration of setting aside the verdict can I ask the court to treat it in the nature of a motion for a new trial so that the State can appeal the decision.” The judge agreed, stating: “ I will grant the motion for a new trial because I am not satisfied the evidence proves guilt beyond a reasonable doubt and grant a new trial on the issue-that will give the State a chance to appeal and we’ll see what the appellate court has to say.” On appeal to the Florida First District Court of Appeals, two judges agreed to affirm the granting of a new trial. On retrial, after hearing additional evidence that was not presented in the first trial, the jury returned a verdict identical to that in the first trial. On habeas corpus the district court held that, “the Double Jeopardy Clause barred Freer’s retrial and subsequent conviction.” The district court held that: “The trial judge’s statement in ultimately concluding that he would instead grant the state’s motion for a new trial-the judge said that he was not satisfied the evidence proved guilt beyond a reasonable doubt -also indicated that he was basing his ruling on the sufficiency of the evidence. As to the trial judge’s comment that granting the motion for a new trial will give the State a chance to appeal, “the district court concluded that the judge was attempting “to put form over substance” in an attempt to mollify the effect of overturning the guilty verdict.” The district court concluded that because the judge had determined that the state had failed to prove guilt beyond a reasonable doubt the state cannot then ask for, and get, another bite at the apple.”

Petitioner contends that Freer’s case is so similar to his case both factually and legally that the Due Process and Equal Protection of Laws Clause under the U.S. Const. Amend. Fourteen, sec. 1; S.C. Const., art. 1, sec. 3, requires that he is afforded the same protections under the Fifth Amendment Double Jeopardy Clause. Petitioner contends that, as in Freer, the Honorable Judge Baxley, in his case, after stating that the, “the prosecution that they are unable to meet the “burden of proof” to the extent that they can bring back a unanimous verdict,” and then stating that it was up to the prosecution whether they would retry the case and declaring a mistrial, Judge Baxley was attempting to “put form over substance,” in an attempt to “mollify” the effect of his “judgment of acquittal.” Judge Baxley, after establishing that “the prosecution that they are unable to meet the “burden of proof” to the extent that they can bring back a unanimous verdict,” could not then afford the prosecution “another bite at the apple.”

     Green v. Massey, 437 U.S. 19 (1978), “On appeal of the first degree murder convictions of petitioner and another, the Florida Supreme Court reversed by a per curiam opinion and ordered a new trial. That opinion, which a majority of the justices joined stated, “the evidence was definitely lacking in establishing beyond a reasonable doubt that the defendants committed murder in the first degree,” and that the “interest of justice require a new trial...” Before the second trial defendants unsuccessfully contended in the state courts that the trial court’s per curiam opinion was tantamount to a finding that the trial court should have directed a verdict of not guilty and a second trial for first-degree murder would constitute double jeopardy; and defendants were retried and convicted of first-degree murder. The U.S. Supreme Court held that: If we were confronted only with the per curiam opinion of the Florida Supreme Court, reversal in this case would follow. The per curiam disposition, standing by itself, leaves no room for interpretation by us other than that a majority of the State Supreme Court was “of the view that the evidence was definitely lacking in establishing beyond a reasonable doubt that the defendants committed murder in the first degree...” By using the precise terminology “lacking in establishing guilt beyond a reasonable doubt,” the highest court in Florida seems to have clearly said that there was insufficient evidence to permit the jury to convict petitioner at his first trial.... Viewed in the manner, the reasoning enunciated in Burks, would obviously compel the conclusion that Green’s second trial violated the Double Jeopardy Clause.”

          Petitioner contends that his case is the same as Green’s, the Honorable Judge Baxley, by using the precise terminology that “the prosecution that they are unable to meet the burden of proof to the extent that they can bring back a unanimous verdict,” was clearly saying that there was insufficient evidence to convict him in his first trial, therefore, Petitioner’s second trial violated the Double Jeopardy Clause.

          According to clearly established United States Supreme Court law, the Honorable Judge Baxley's ruling discharging Petitioner's jury on the grounds that the state failed to meet their "burden of proof" to convict him was an acquittal despite the “label” the Honorable Judge Baxley placed on the ruling as a mistrial. See: U. S. v. Martin Linen Supply Co., 430 U.S. 564 (1977), “The U.S. Supreme Court, Mr. Justice Brennan held that double jeopardy clause barred appeal by U.S. from judgments of acquittal entered under Rule 29 (c) following discharge of jury which had been unable to agree on verdict in criminal contempt trial. Affirmed. What constitutes an “acquittal” for purposes of applications of Double Jeopardy Clause, is not to be controlled by the form of the judge’s actions; rather, we must determine whether the ruling of the judge, whatever it’s label, represents a resolution, correct or not, of some or all the factual elements of the offense charged. The court made only too clear it’s belief that the prosecution was “the weakest (contempt case that) I’ve ever seen.” In entering the judgment of acquittal, the court also recorded its view that “the government has failed to prove the material allegations beyond a reasonable doubt.” Thus, it is plain that the District Court in this case evaluated the Government’s evidence and determined that it was legally insufficient to sustain a conviction. The Court of Appeals concluded that this determination of insufficiency of evidence triggered double jeopardy protection. Although retrial is sometimes permissible after a mistrial is declared but no verdict or judgment has been entered, the verdict of acquittal foreclosed retrial and thus barred appellate review.”

Mannes v. Gillespie, 967 F.2d 1310 (1992), "(1) District Court was not required to abstain from hearing habeas petition; (2) state trial judge's dismissal of murder charges in furtherance of justice based on finding that evidence at trial was insufficient to convict, was a acquittal for double jeopardy purposes; (3) and judgment of acquittal entered after deadlocked jury is dismissed terminates jeopardy and prevents retrial. See also: Evans v. Michigan, 568 U.S. 313 (2013), “Here we know that trial court acquitted Evans, not because it incanted the word, “acquit” (which it did not) but because it acted on its view that the prosecution had failed to prove its case. Labels do not control the analysis of whether a decision dismissing a criminal case bars retrial under double jeopardy clause, rather the substance of the court decision does. The U.S. Supreme Court, Justice Sotomayor, held that midtrial directed verdict and dismissal, based on trial court’s erroneous requirement of an extra element for the charge offence, was “acquittal” for double jeopardy purposes. An acquittal for double jeopardy purposes includes a ruling by the court that the evidence is insufficient to convict, a factual finding that necessarily establishes the criminal culpability, and other rulings which relates to the ultimate question of guilt or innocence. Most relevant here, an “acquittal encompasses any ruling that the prosecution’s proof is insufficient to establish criminal liability for an offence.” See: Lee v. U.S., 432 U.S 23 (1977). “Questions as to whether double jeopardy clause prohibits retrial after the case has been terminated, after jeopardy has attached, without a finding on the merits does not depend upon whether the court labels its action a dismissal or declaration of “mistrial” but rather whether the order contemplates an end to all prosecution of the defendant for the offense charged.”Hudson v. Louisiana, 450 U. S. 40 (1981), “Double Jeopardy principles precluded re-trial where petitioner moved for a new trial on the grounds that evidence was legally insufficient to support the verdict and trial judge granted motion on grounds that State failed to prove it’s case as a matter of law.”

          Petitioner contends that the record proves that Judge Baxley’s comments in reference to declaring a mistrial, Judge Baxley made no comments that he: (1) reconsidered his “strong message” to the prosecution that they were unable to meet the “burden of proof” to convict him. See: Smith v. Massachusetts, 543 U.S. 462 (2005); (2) Judge Baxley made no comments that his decision to declare a mistrial was pursuant to any “procedural” reasons on questions unrelated to factual “guilt” or “innocence,” that would justify declaring a mistrial. See: Evans v. Michigan, 568 U.S. 313 (2013), quoting U.S. v. Scott, 437 U.S. 82 (1978), “This ruling was not a dismissal on procedural grounds “unrelated to factual guilt or innocence,” like the question in Scott, but rather a determination that the State had failed to prove its case. Under our precedents, then, Evans was acquitted.”

Petitioner contends that, as in Evans, in his case, the Honorable Judge Baxley’s ruling was a determination that, “the State had failed to prove its case," therefore, under U.S. Supreme Court precedents, then, Petitioner was acquitted; and (3) Nor, does the record reflect that there was a “manifest necessity” to declare a mistrial. (See: Ground 3).

         As a matter of fact, the record proves that after declaring a mistrial, the Honorable Judge Baxley made additional comments that he evaluated the “set of facts” presented to the jury, and reiterated his view that his decision to declare a mistrial was based on a “strong message” to the prosecution that were unable to meet the “burden of proof” to convict Petitioner.

South Carolina Law

    In The South Carolina Supreme Court, it was established in State v. Gregorie, 339 S.C. 2 (2000) that, “On the merits, this issue is “simple.” The Circuit Court found the State failed at trial to meet its “burden of proof” and ordered a new trial. Petitioner contends, correctly, that under these circumstances, a second trial in magistrate court would violate his Double Jeopardy Rights.” Citing Burks v. United States, 437 U. S. 1 (1978).

         Petitioner contends that his case is the same as Gregorie, on the merits, the issue is "simple." In Petitioner's first trial of 2012, the Honorable Judge Baxley found that the Georgetown County Solicitor's Office failed, at trial, to meet their “burden of proof.” and ordered a new trial. Petitioner also makes the same argument as Gregorie, that under such circumstances, his second trial of 2014, violated his double jeopardy Rights.

    In State v. Clifford, 335 S.C. 129 (1999), "the conviction was reversed based on the "legal insufficiency" of evidence, the matter is remanded to the trial court with instructions to enter a verdict of acquittal. The controlling authority is Burks v. United States, 437 U. S. 1 (1978)."

LACK OF TRIAL COURT’S JURISDICTION TO IMPOSE SENTENCE PURSUANT VIOLATION OF FIFTH AMENDMENT DOUBLE JEOPARDY CLAUSE

          Petitioner contends that his second trial, judgment, and sentence, poses no legal nor jurisdictional authority for the South Carolina Department of Corrections to hold him in prison for the same offense of which he was acquitted. See: Horry County v. Parbel, 378 S.C. 253 (2008), ”A criminal trial was held in magistrate’s court, and Appellants requested jury trial. After Horry County rested it’s case, Appellants moved for a dismissal of all charges. The magistrate granted Appellant’s motion for dismissal and inculcated “the County has not met the allegations of this zoning ordinance in proving 1303.” Horry County appealed the magistrate’s ruling to circuit court after Appellant’s acquittal on March 8, 2005. Though the magistrate prayed for the circuit court to dismiss Horry County’s appeal with prejudice, the circuit court found it had both subject matter jurisdiction over the issues raised on appeal and personal jurisdiction over Appellants. Appellants maintain the circuit court violated the Double Jeopardy Clause by ruling on Horry County’s appeal after they were acquitted in magistrate’s court. We agree. The United States has a long history of this constitutional protection. “If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offense. And though there have been nice questions in the application of this rule to cases in which the act charged was such as to come within the definition of more than one statutory offence, or to bring the party within the jurisdiction of more than one court, there has never been any doubt of its entire and complete protection of the party when a second punishment is proposed in the same court, on the same facts, for the same statutory offence. Exparte Lange, 18 Wall. 163, 85 U S. 163, 168, 21 L. Ed. 872 (1873). The Supreme Court explicated: “Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that ‘(a) verdict of acquittal... could not be reviewed on error or otherwise, without putting (a defendant) twice in jeopardy, and thereby violating the Constitution.” U.S. v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977).

          See: Exparte Lange, 85 U.S. 163 (1873), “The Court initiated what has been described as a long process of expansion of the concept of the lack of jurisdiction. Lange contended that he had been twice sentence for the same offence, in violating the Fifth Amendment’s Double Jeopardy Clause, when he had been re-sentenced to a term of imprisonment after having paid the fine originally imposed. Carefully disclaiming the use of Habeas, as a writ of error, the Supreme Court ordered Lange released from imprisonment because the lower Court’s jurisdiction terminated upon the satisfaction of the original sentence. A second judgment of the same verdict is, under such circumstances, “void for want of power,” and it affords no authority to hold the party a prisoner and must be discharged.”

          U.S. v. Scott, 437 U.S. 82 (1978), “A judgment of a acquittal, whether based on jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict may not be appealed and terminates the prosecution when a second trial would be necessitated by reversal.” U. S. v. Wilson, 420 U.S. 332, 95 S. Ct. 1013 (1975), “Constitutional protection against government appeals attaches only where there is a danger of subjecting the defendant to a second trial for the same offence. Provisions of the Criminal Appeals Act of 1907 that government could not have a writ of error in any case where there had been a verdict in favor of the defendant was to assure that the statute would not conflict with the principles of the double jeopardy clause.”

GROUND 2

JUDGMENT OF ACQUITTAL, DOUBLE JEOPARDY, NOVEMBER 17, 2022 HEARING

II. The Circuit Court Judge Benjamin H. Culbertson stated an error of law in his ruling pursuant Petitioner's November 17, 2022 hearing and acquitted Petitioner again when he stated that the Honorable Judge Baxley's ruling in Petitioner's first trial of 2012, which was a jury trial, discharging his jury on the grounds that the prosecution failed to meet their "burden of proof" to convict him "was" a judgment of acquittal for purposes of double jeopardy, "but," it would have only been an acquittal for double jeopardy purposes if Petitioner's trial was a bench trial, and because Petitioner had a jury trial the Honorable Judge Baxley’s ruling was not an acquittal.

Statement of Facts

       Petitioner contends that the record shows that at the November 17, 2022, hearing, pursuant to his Emergency Motion For Immediate Release, Double Jeopardy, False Imprisonment, Lack of Trial Court's Jurisdiction to Impose Sentence, the Honorable Judge Culbertson admitted that the Honorable Judge Baxley’s ruling in his first trial 2012 was an acquittal. However, Judge Culbertson, after admitting this, then stated an error of law by saying that it was only an acquittal if Petitioner's trial had been a bench trial, and that because Petitioner had a jury trial, it was not an acquittal.

See: Transcript of November 17, 2022, Hearing, Tr. P. 5, L. 8 – 25, - P. 6, L. 1 – 6.

8 THE COURT : Let me ask you, and I apologize for

9 interrupting and I'll let you fully argue your motion ,

10 but was this a jury trial?

11 MR. YARBOROUGH : It was.

12 THE COURT : And it resulted in a hung jury?

13 MR YARBOROUGH : Mr. Dizzley, for years, since --

14 since he was retried has filed motions over and over

15 saying, look, you all did not have the authority to

16 try me that second time....

24 Now, if this was a bench trial and the judge said

25 they have not carried their burden of proof, then I

Page 6, L 1-6.

1 agree with you, double jeopardy.

The above ruling by Judge Culbertson is contrary to clearly established United States Supreme Court law. The U.S. Supreme Court determined in, United States v. Morrison, 429 U.S. 1, 3 (1976), "Double Jeopardy Clause treats bench and jury trials alike." The U.S. Supreme Court controlling case pursuant to “judgments of acquittals” based on "insufficient evidence to convict," is, United States v. Martin Linen Supply Co., 430 U.S. 564 (1977), which is a jury trial case. The controlling case on “judgments of acquittals” pursuant to bench trials is, Smalis v. Pennsylvania, 476 U.S. 140 (1986), and Smalis supports its decision using Martin and other jury trial cases. See: Smalis v. Pennsylvania, 476 U.S. 140 (1986), “The Supreme Court, Justice White, held that trial judge’s ruling on defendants’ demurrer holding that Commonwealth’s evidence was insufficient to establish factual guilt was an acquittal under double jeopardy clause and barred Commonwealth’s appeal. Whether the trial is to a jury or, as here, to the bench, subjecting the defendant to post acquittal proceedings going to guilt or innocence violates The Double Jeopardy Clause." U. S. v. Scott, 437 U. S. 82 (1978), “A judgment of an acquittal, whether based on jury verdict of not guilty or on a ruling by the court that the evidence is insufficient may not be appealed and terminates the prosecution when a second trial would be necessitated by reversal.” Evans v. Michigan, 568 U. S. 313 (2013), “An acquittal, is unreviewable on retrial, under The Double Jeopardy Clause, whether the judge directs the jury to return a verdict of acquittal or foregoes that formality by entering a judgment of acquittal herself.”

          Therefore, according to clearly established U.S. Supreme law: (1) The Honorable Judge Culbertson’s ruling was an acquittal despite his intentional misinterpretation of the law that “judgments acquittals” pursuant to a prosecution's "failure to meet their burden of proof," or "insufficient evidence” to convict only applies to bench trials. See: Evans v. Michigan, 568 U.S. 313 (2013), “A mistaken acquittal is an acquittal nonetheless, even if the acquittal is “based upon an egregiously erroneous foundation,” Fong Foo v. United States, 369 U.S. 141, such as an erroneous decision to exclude evidence, Sanabria v. United States, 437 U.S. 54, a mistaken understanding of what evidence would suffice to sustain a conviction, Smith v. Massachusetts, 543 U.S. 462; or a “misconstruction of the statute” defining the requirements to convict, Arizona v. Rumsey, 467 U.S. 203 (1984); and (2) Therefore, according to clearly established U.S. Supreme Court law, the Honorable Judge Culbertson’s misinterpretation of the Fifth Amendment Double Jeopardy Clause, ruling that the Honorable Judge Baxley's ruling in Petitioner’s first trial of 2012 that the prosecution failed to meet their "burden of proof" "was" an acquittal for Double Jeopardy purposes if Petitioner’s trial was bench trial, and because Petitioner had a jury trial it was not an acquittal, was also an acquittal despite the "label" that he placed on his ruling of a “denial” of Petitioner’s "Emergency Motion For Immediate Release, Double Jeopardy, False Imprisonment, Lack of Trial Court's Jurisdiction to Impose Sentence."

       Therefore, Petitioner was acquitted "twice," receiving two "favorable terminations" of his case, (1) in Petitioner’s first trial of 2012, when the Honorable Judge Baxley discharged his jury on the grounds that the prosecution failed to meet the “burden of proof” to convict Petitioner; and (2) when the Honorable Judge Culbertson, at the November 17, 2022 hearing admitted that Judge Baxley’s ruling was an acquittal.

Note

The U.S. Supreme Court determined in Fay v. Noia, 372 U.S. 391 (1963), "When a man is brought by habeas corpus to the Court, and upon retorn of it, it appears to the Court, that he was against law imprisoned and detained, he shall never be by the act of the Court remanded to his unlawful imprisonment, for then the Court should do an act of injustice in imprisoning           de novo, against law."

When I appeared before Judge Benjamin H. Culbertson, on November 17, 2024, with evidence supported by the record and clearly established U.S. and South Carolina Supreme Court precedents which proves that I am being held illegally incarcerated for ten years and counting without any legal nor jurisdictional authority; for Judge Culbertson to turn a "blind eye" to my illegal incarceration and remand me to an unlawful imprisonment was an act of "injustice," conspiracy to kidnapping/false imprisonment, terrorism, "unlawful subjection to slavery," and federal hate crimes. 

GROUND 3

DOUBLE JEOPARDY

“MANIFEST NECESSITY OR ENDS OF PUBLIC JUSTICE”

III. Judge Baxley's sua sponte declaration of a mistrial in Petitioner's first trial of 2012 was not dictated by a manifest necessity or ends of public justice and therefore, Petitioner's second trial of 2014 for the same offense violated Petitioner's Fifth Amendment rights under the Double Jeopardy Clause.

        See: U. S. v Perez, 22 U. S. 579 (1824), “Mr. Justice STORY delivered the opinion of the Court. In criminal prosecutions, courts have authority to discharge jury from giving any verdict when in their opinion taking all circumstances into consideration there was a manifest necessity for the act or the ends of public justice would be defeated. In discharging jury in criminal prosecutions, courts are to exercise sound discretion, but the power should be used with the greatest caution under urgent circumstances and for very plain and obvious causes; and in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner.” U. S. v. Jorn, 400 U.S. 470 (1971). See: Washington v. Jarvis, 137 Fed. Appx. 543 (2005 4th Cir.), “Under Supreme Court law, a finding of “manifest necessity” must be based on the totality of the circumstances. United States v. Sanford, 429 U.S. 14 (1976). This clearly established standard generally requires an investigation of whether less drastic alternatives to mistrial are available.” State v. Bilton, 156 S. C. 324 (1930), “Discharge of jury without defendant’s consent for reason legally insufficient and without absolute necessity, is equivalent to acquittal, and bars subsequent indictment for same offense."

Statement of Facts

        Petitioner contends that the Honorable Judge Baxley’s ruling of “acquittal” resulted from an improvidently granted mistrial after only three to four hours of deliberations, portions of that time was consumed by several questions from the jury and time for answering these questions. Judge Baxley, with no consideration to any alternative, without giving any advance warning or notice to the defense counsel nor the court, and without polling the jury, spontaneously declared a mistrial. See: Transcript of 2012 by Court Reporter, Krystal Smith, Tr. P. 116 – 125. See also: Transcript of Court Reporter, Grace Hurley, Tr. P. 308, L6 – 316.

        On August 29, 2012, at 1:07 p.m., the jury began deliberations. Shortly after deliberations began, the jury sent a message asking to hear the testimonies of

Petitioner's four alibi witnesses; the judge responded that it would take approximately an hour to set up. At 3:57 p.m., the jury entered the courtroom and listened to the witnesses’ testimonies until 4:52 p.m. and told the judge that they could not reach a verdict “that afternoon." At this point, the jury had deliberated only three hours and four minutes before entering the courtroom to listen to the testimonies of the four alibi witnesses. Instead of the trial judge giving an Allen charge and directing the jury to continue deliberations, at 5:26 p.m., the trial judge called the jury back into the courtroom and sent them home early that day, without any consideration as to

Petitioner's “valued right” under The Fifth Amendment Double Jeopardy Clause of the United States Constitution to have his trial completed by a particular tribunal.

         The next day, August 30, 2012, jury deliberations continued at 9:42 a.m. However, instead of the jury deliberating, the jury only sent a series of notes to the judge. The first note was received at 10:03 a.m.; and a reply was sent back at 10:21

a.m. Another note was received at 11:12 a.m. that the jury could not reach a verdict, and at 11:25 a.m., the jury entered the courtroom, and the judge gave an Allen charge and sent the jury back to continue deliberations. At 12:20 p.m., the jury foreman sent another note indicating that they were still unable to reach a verdict. Trial judge then, spontaneously called the jury in court room, and in the presence of the jury, with no advance warning or notice to the defense counsel or the prosecution, declared a mistrial, stating that his decision to declare a mistrial was not based on a failure on the on jury’s part to reach a unanimous verdict, but that his decision was based on “a strong message to prosecution that they are unable to meet the burden of proof” to the extent that they could bring back a unanimous verdict."

Petitioner contends that U. S. v. Horn, 583 F. 2d 1124 (1978 10th Cir.), is identical to his case, “The Court of Appeals, held that although the jury foreman the night before, after three to four hours of deliberations, had sent a note that the jury was deadlock, as a result of which the court on the following morning gave an Allen charge, there was no “manifest necessity” for the court, acting sua sponte after somewhat more than one hour’s further deliberations to declare a mistrial without inquiry of jurors at such time as to whether they had made progress or expected to reach a verdict and jeopardy attached by reason of such erroneous declaration of mistrial.”

Petitioner contends that the record shows that there was no manifest necessity to declare a mistrial sua sponte after only three to four hours of deliberations. Whereas, (1) the trial record reflects that the trial judge, after receiving a second note from the jury, shortly after an Allen charge indicating that they were unable to agree, did not inquire whether more time would help facilitate unanimity or whether more deliberations would be beneficial to the jury. (2) The trial record does not reflect that there existed a significant risk that a verdict may have resulted from pressures inherent in the situation rather than the considered judgment of all the jurors, which would suggest; “a genuinely deadlocked” jury; (3) the trial record does not reflect that the trial judge delicately balanced Petitioner's “valued right to have his trial completed by a particular tribunal.”

        In State v. Prince, 279 S.C. 30 (1983), the Supreme Court held that where jury had been deliberating only from approximately 4:30 in the afternoon until 10 o'clock at night, a portion of that time consumed by evening meals, mistrial was ordered over defendant’s objections after jury request testimony of two witnesses to be read and court reporter indicated that the testimony would take approximately two hours and 10 minutes was not dictated by manifest necessity or ends of public justice, and therefore retrial of the defendant was barred by double jeopardy. Reversed. Citing Benton v. Maryland, 395 U.S. 784 (1969); Wade v. Hunter, 336 U.S. 684 (1949); Illinois v. Somerville, 410 U.S. 458 (1973); State v. Rowlands, 343 S.C. 454 (2000), “Double Jeopardy Clause barred prosecution for DUI after an improvidently granted mistrial; state moved for a mistrial, after jury was sworn, on ground that one of his material witnesses was missing, which amounted to a “failure of proof,” and, therefore, the trial court granted mistrial was not dictated by manifest necessity or ends of public justice.”

       In State v. Robinson, 360 S.C. 187 (2004), It was ruled that there was a manifest necessity for declaration of mistrial where: “record indicated that deliberations for a two-day criminal trial lasted an entire day, that upon receiving notification of jury deadlock, trial judge administered an Allen charge, and that when judge received further notice of deadlock, he inquired whether more time would help facilitate unanimity and jury responded with unequivocal answer that additional time would not break the deadlock. At the second indication of deadlock, courts typically inquire as to whether more deliberations would be beneficial to the jury, and the issue of consent is determined from the jury’s response.”

      However, Petitioner's case is distinguished from Robinson. In Petitioner's case the Honorable Judge Baxley did not inquire as to whether more time would help facilitate unanimity although the jury had deliberated for such a short amount of time.

       Petitioner also contends that the trial record does not indicate any unwillingness on the part of the jury to deliberate further. See: Buff v. S. C. Dep’t. of Transp. 342 S. C. 416 (2000), “When a jury has twice indicated it is deadlocked, the judge should diplomatically discuss with the jury whether further deliberations could be beneficial. The jury’s consent to resume or to discontinue deliberations is determined either expressly or impliedly, by its response to the trial judge’s comments.” In State v. Rowell, 75 S.C. 494 (1906), the jury twice stated that it was unable to reach a unanimous verdict. The trial court sent the jury back to deliberate for a third time; it did not inform the jury its consent was necessary in order to pursue further deliberations. The Court held that there was no abuse of discretion in returning the jury to deliberate a third time where there was no indication of unwillingness on the part of the jury to retire. See also: State v. Drakeford, 120 S. C. 400 (1922); Edwards v. Edwards, 342 S. C. 416 (2000).

        Petitioner contends that based on the totality of the circumstances of his case and clearly established law, the Honorable Judge Baxley could have considered the alternative of inquiring to the jury whether more time would help facilitate unanimity, especially after such short deliberations and the fact that he allowed the jury to go home early the day before for no sufficient reason. Instead of considering any other alternatives, the record shows that the Honorable Judge Baxley, after receiving a second note from the jury foreman that the jury could not reach a verdict, called the jury in the courtroom and abruptly declared a mistrial in the presence of the jury without notifying counsel nor the prosecution. See: U. S. v. Jorn, 400 U.S. 470

(1971), “In finding a lack of manifest necessity, the plurality stressed that the trial judge gave absolutely “no consideration” to the alternative of trial continuance, and “indeed, acted so abruptly discharging jury” that the parties were given no opportunity to suggest the alternative of continuance or to object in advance to the discharge of the jury. The plurality concluded that where trial judge simply “made no effort to exercise sound discretion to assure that there was a manifest necessity for the sua sponte declaration of a mistrial, a re-prosecution would violate the double jeopardy provision of the Fifth Amendment.” Downum v. U. S., 372 U.S.734 (1963).

U. S. ex. rel. Webb v. Court of Common Pleas of Philadelphia County, 516 F. 2d. 1034 (1975 3rd Cir.), “Constitutional Double Jeopardy considerations precluded trial of the defendant for a third time on same charges where, after initial prosecution had resulted in hung jury, trial judge in second prosecution, after six and one-half hours of jury deliberations, raised issue of jury deadlock sua sponte and declared a mistrial because of hung jury after having interrogated only jury foreman as to state of jury’s deliberations.” U. S. ex. rel. Russo v. Superior Court of New Jersey, Law Division, Passaic County, 483 F. 2d 7 (1973 3rd Cir. ), “The Court of Appeals held that there was no manifest necessity to declare a mistrial after only 15 hours of deliberations on grounds that jury was too exhausted to reach an impartial verdict. Defence counsel’s failure to object to declarations of mistrial while jury was in the box after being recalled by court rather than in judge’s chambers after jury had been dismissed, did not prejudice right to challenge subsequent retrial as placing defendant in double jeopardy where defence counsel had no advance warning or notice that mistrial was to be declared and to have objected in front of the jury, might have prejudice the defendant for trying to “show up,” the trial judge, who granted mistrial on ground that jury was exhausted, especially if some members of the jury actually did want to go home despite their civil obligation.” See also: U. S. v. Razmilovic, 507 F. 3d 130 (2007 2nd Cir.), “This case at hand calls on us to review such a ruling to determine whether it was an abuse of discretion for a trial court to decide that a single note indicating deadlock created “manifest necessity” to declare a mistrial. On the record before us, we conclude that it was. We therefore hold that retrial of defendants- appellants Michael DeGennaro and Frank Borghese would violate double jeopardy clause of the Fifth Amendment. We also must decide whether Borghese consented to the mistrial but then almost immediately changed his position. We find that Borghese did not deliberately forego his right to have his guilt determined by his original tribunal. The Court of Appeals Circuit Judge Katzmann held that (1) there was no manifest necessity to declare mistrial and (2) defendant did not move for or consent to mistrial. Reversed and Remanded.”

       United States v. Gordy, 526 F. 2d 631, 636-37 (5th Cir. 1976), "Finding that the record was insufficient to determine that “no verdict could be reached,” despite statement by foreman that jury was “hung” because no dialogue “was developed with the jurors individually,” and it could not be said with certainty that further deliberations “would have proved futile.”

      Petitioner contends that the record shows that Judge Baxley’s sua sponte decision to declare a mistrial was not dictated by a "manifest necessity or ends of public justice" which violated his “valued right’ to have his trial completed by a particular tribunal. Because jeopardy attached when the jury was sworn in, Petitioner's second trial was barred by the Fifth Amendment Double Jeopardy Clause. See: Arizona v. Washington, 434 U.S. 497 (1978),“Because jeopardy attaches before the judgment becomes final, the constitutional protection also embraces the defendant’s “valued right” to have his trial completed by a particular tribunal. The reasons why this “valued right” merits constitutional protection are worthy of repetition. Even if the first trial is not completed, a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolong the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted. The danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed. Consequently, as a general rule, the prosecution is entitled to one and, only one, opportunity to require an accused to stand trial.” Crist v. Bretz, 437 U. S. 28 (1978).

        For the foregoing reasons, the Honorable Judge Baxley‘s sua sponte declaration of a mistrial, in Petitioner's first trial of 2012, was not dictated by a manifest necessity or ends of public justice, and therefore, Petitioner's second trial of 2014 was barred by double jeopardy.

GROUND 4

INDICTMENT

IV. The trial court exceeded its jurisdiction by holding Petitioner to answer for an infamous crime and sentencing him to imprisonment pursuant to an indictment that was null and void. Therefore, both Petitioner's first trial of 2012, and his second trial of 2014 was without jurisdiction.

Statement of Facts

Petitioner contends that according to the Fourth Amendment of the United States Constitution, and Art. I sec. 10 of the South Carolina Constitution the only variable that separates the crime of kidnapping, from a lawful arrest is “probable cause.”

Petitioner contends that, from day one of his unlawful imprisonment, he was kidnapped by the Georgetown County Sheriff Department pursuant to an invalid arrest warrant, without probable cause.

         The Fourth Amendment of the United States Constitution states that:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” See: S.C. Code ₴ 16-3-910, Kidnapping. “The crime of false imprisonment has been incorporated into ₴16-3-910 as one method of proving kidnapping. State v. Berntsen, 295 S.C. 52 (1988).”

   On December 11, 2008, Investigator Melvin Garrett of the Georgetown, South Carolina Sheriff’s Department applied for an arrest warrant for Petitioner, for murder, and went before the magistrate to obtain the arrest warrant and prepared an affidavit in the arrest warrant that did not provide any information at all that would enable the magistrate to determine probable cause to issue the arrest warrant. Despite this, the magistrate issued the arrest warrant for Petitioner's arrest. Thus, according to the Fourth Amendment of the U.S. Constitution, Petitioner's arrest warrant is constitutionally deficient, and held no legal nor jurisdictional authority for the Georgetown County Sheriff’s Department to arrest and restrain him of his personal liberty.

  Petitioner contends that an evaluation of his arrest warrant, compared to South Carolina Constitution, Article I, Section 10, and The Fourth Amendment of The United States Constitution, and clearly established South Carolina and The United States Supreme Court laws proves that his arrest warrant is constitutionally deficient.

Whereas Petitioner's arrest warrant affidavit only cites no more than elements of the crime charged, and only states that Petitioner allegedly committed the crime charged without any personal knowledge of the complaining Officer, Investigator Garrett. See : Exhibits.

 In State v. Smith, 301 S.C. 371 (1990), “The Supreme Court, held that the affidavit submitted to the magistrate in support of a search warrant application contained no facts for which the magistrate could determine why the police officers believed that defendant robbed a motel.”

ARREST WARRANT AFFIDAVIT IN STATE V. SMITH

         “That on May 12, at approximately 12:45 p.m. Reginald Jerome Smith went into The Master Inn located at 1468 Savannah Hwy., Charleston, S. C. and he then robbed the manager at knife point. Smith had been staying at The Host of America Room 216 since Jan. 1, 1988, and there is every reason to believe the weapon and clothes used in the robbery will be located in the room. This information was confirmed in person by Sgt. Sherman on 05/13/88.”

       In State v. Weston, 329 S.C. 287 (1997), The Supreme Court held: "Search warrant affidavit which failed to set forth any facts as to why police believed defendant committed crime alleged in affidavit was insufficient to support finding of probable cause to search defendant's car."

AFFIDAVIT IN WARRANT IN STATE V. WESTON

          "On March 18, 1994, at approx. 2245 hours the victim (Claude Crumlin) was the victim of an armed robbery and assault with intent to kill at 5126 Farrow Rd. The defendant in this incident is a Kevin Weston, by S.C. highway depts., is the registered owner of the above listed vehicle. Also, investigation revealed through witnesses in this matter that defendant was driving

above vehicle at the time of incident. The search for the above items are needed to fully complete this investigation."

        Petitioner contends that The United States Supreme Court, in Giordenello v. U.S., 357 U.S. 480 (1958), held that Giordenello's affidavit in his arrest warrant was constitutionally deficient.

ARREST WARRANT AFFADAVIT IN GIORDENELLO v. U. S.

 “The undersigned complainant (Finley) being duly sworn state: That on or about January 26, 1956, at Huston, Texas in the Southern District of Texas, Veto Giordenello did receive, conceal, etc. narcotic drugs, to – wit: heroin, hydrochloride with knowledge of unlawful impartation; in violation of Section 174, Title 21, U. S. Code.”

         See: Giordenello v. U.S., 357 U.S. 480 (1958) “ Under Federal Rules of Criminal Procedure, complaint merely charging the concealment of heroin without knowledge of it’s illegal impartation in violation of designated statute and containing no affirmative allegations that the complaining officer spoke with personal knowledge of the matters contained therein and not indicating any sources for the officer’s belief and not setting fourth any other sufficient bases upon which a finding of probable cause could be made, did not authorize U.S. Commissioner to issue a warrant for arrest of defendant, and the deficiencies could not be cured by commissioner’s reliance upon a presumption that the complaint was made on personal knowledge of complaining officer. The Commissioner should not accept without question the complainant’s mere conclusion that the person whose arrest they sought had committed the crime.” See: Arrest Warrant of Terron Dizzley.

ARREST WARRANT AFFIDAVIT OF TERRON GERHARD DIZZLEY

 “That on or about December 1, 2008, at approximately 10:30 p.m. at 899 Oakland Road in the County of Georgetown, while at the Paradise Club/First and Ten Sports Barr, one Terron Gerhard Dizzley did, with malice and forethought cause the death of Aundrey Evans, Jr. by shooting him about the body multiple times with a handgun. This being against the peace and dignity of The State of South Carolina and a violation of South Carolina Code of Law 16-03-0010.12080088 / Inv. M. Garrett / Inv. D. Morris”.

          Petitioner contends that a comparison of his affidavit in his warrant with the affidavits in the warrants in Smith, Weston, and Giordenello proves that they are identical on the grounds that they provide no sufficient basis for which a magistrate could've found probable cause to issue an arrest warrant, and only states that crimes were allegedly committed. Therefore, The South Carolina and The United States Supreme Court has held that such affidavits, as in Petitioner's arrest warrant is constitutionally deficient, which resulted in an unlawful arrest, unlawful pre-trial detainment, and false imprisonment. See: State v. McKnight, 291 S.C. 110 (1987), " (1) search warrant was defective as a result of officers' failure to comply with affidavit requirement in warrant statute; (2) suppression was appropriate remedy for failure to comply with warrant statute, and (3) all defendants against whom State sought to admit evidence has standing to challenge legality of search under warrant statute. Code 1976, sec. 17-13-140; Const. Art. 1, sec. 10; U.S.C.A. Const. Amend. 4." State v. Sachs, 264 S.C. 541 (1975), "Exclusion of evidence is not the only means available to ensure that search warrants are properly issued, disciplinary action or an indictment, if proper may follow against an officer who recites the erroneous facts in an affidavit leading to issuance of search warrant." Illinois v. Gates, 462 U.S. 239 (1983), “Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his actions cannot be a mere ratification of the bare conclusions of others.” Whiteley v. Warden, Wyo. State Pen., 401 U.S. 560 (1971), “Complaint signed by county sheriff which recited that defendant, and another did and there unlawfully break and enter particular locked and sealed building was not sufficient to support independent judgment of disinterested magistrate and was not sufficient showing of probable cause for issuance of arrest warrant. Before warrant for either arrest or search warrant can be issued, judicial officer must be supplied with

 sufficient information to support independent judgment that probable cause exists for the warrant.”

Jurisdiction, Arrest Warrant, Indictment, Malicious Prosecution

 Petitioner contends that in affecting his unlawful arrest and detention pursuant to an unlawful arrest warrant in which the affidavit did not conform to the requirement of the Fourth Amendment of The United States Constitution nor The South Carolina Constitution, Art. 1 ₴ 10, and was obtained by knowingly making false declarations to the magistrate, resulted in kidnapping and an unlawful deprivation of Petitioner's liberty without legal nor jurisdictional authority pursuant to an arrest warrant that was “null and void.” See: State v. Dunbar, 361 S.C. 240 (2004), “The Fourth Amendment requires that magistrates be impartial and severed from and disengaged from the activities of law enforcement such as that independent determination is not distorted in issuing a search warrant; In reviewing an application for a search warrant, a magistrate must make an independent determination of probable cause and not serve as a rubber stamp for police; A magistrate must not wholly abandon his or her judicial function and essentially perform a police function in issuing a search warrant.” Lo-Ji Sales, Inc., v. York, 442 U.S. 319, 326-27 (1979), “Holding that judge who issued a search warrant abandoned his judicial function and was not neutral and detached when he led police in search.” U .S. v. Leon, 468 U.S. 897 (1984), "Deference to a magistrate in search warrant matters is not boundless and deference accorded finding of probable cause does not preclude inquiry into the knowing or reckless falsity of the affidavit on which that determination was based and a magistrate must purport to perform his neutral and detached function and not serve merely as a rubber stamp for the police. A magistrate failing to manifest the neutrality and detachment demanded of a judicial officer when presented with a search warrant application and who acts instead as an adjunct law enforcement officer cannot provide valid authorization for an otherwise unconstitutional search.”

     Petitioner contends that according to Dunbar, Lo-Ji, and Leon, Magistrate Elliott, by issuing an arrest warrant without probable cause, abandoned her judicial function as a neutral and detached magistrate and essentially performed a police function and merely served as a rubber stamp for The Georgetown County Sherriff’s Department. Therefore, Petitioner's arrest warrant was invalid, and The Georgetown County Sheriff’s Department had no legal nor jurisdictional authority to deprive him of his liberty.

      Petitioner contends that the record proves that he requested and had a preliminary hearing. Petitioner contends that he had a right to, and did not waive that right, to rely on the magistrate at his preliminary hearing to ensure that he was not being held in absence of a finding of probable cause that he committed the offense charged. State v. McClure, 277 S C. 432 (1982) "In a preliminary hearing, the State must show that there was "probable cause" to arrest the defendant for the commission of a crime. Absent this showing, the charge must be dismissed." State v. Weston, 329 S.C. 287 (1997), "The duty of the reviewing court is simply to assure that the magistrate had a substantial basis for concluding that probable cause existed." See: Giorodenello v. U.S., 357 U.S. 480 (1958), "By waiving preliminary hearing examination, a defendant waives no more than the right which this examination was intended to secure him, namely, the right to not be held in the absence of a finding by the United States Commissioner of probable cause that he has committed an offense."

      Petitioner contends that Dubar, LoJi, and Leon, also applies to the magistrate at his preliminary hearing, who is also supposed to be neutral and detached, and by "failing to manifest that neutrality and detachment demanded of a judicial officer cannot provide valid authorization" to bound Petitioner's case over to a criminal court for an "otherwise unconstitutional" restraint of Petitioner's personal liberty. Therefore, such order was null and void, and the magistrate essentially performed a prosecutorial function by serving merely as a rubber stamp for the prosecution. See: Coolidge v. New Hampshire, 403 U.S. 443 (1971), “Warrant for search of automobile was invalid because it was not issued by a “neutral and detached magistrate” where determination of probable cause was made by chief enforcement agent of the state, the Attorney General, who was actively in charge of criminal investigation and later was to be chief prosecutor at trial.”

          Petitioner contends that the magistrate, at his preliminary hearing, which is the reviewing court, by simply looking at his arrest warrant’s affidavit, knew that the arrest warrant was obtained pursuant to an affidavit that didn’t establish any probable cause, and was constitutionally deficient, and , therefore, “void,” and that Petitioner was being held unlawfully. Therefore, the magistrate had no jurisdictional nor legal authority to even conduct a preliminary hearing (Note: Petitioner was literally being held kidnapped at the preliminary hearing because the Georgetown County Sheriff's Department had no legal nor jurisdictional authority to restrain him of his liberty and have him brought to a preliminary hearing pursuant to an invalid arrest warrant. Note also: This was not a warrantless arrest) and, should have ordered that Petitioner be immediately released from being held unlawfully.

    Instead, the magistrate at Petitioner's preliminary hearing, unlawfully, and without probable cause nor jurisdiction, bound Petitioner's case over to criminal court despite the fact that he was being held unlawfully pursuant to an invalid arrest warrant.

    According to the laws of South Carolina, when a person request a preliminary hearing, the state lacks jurisdiction to indict that person because the jurisdiction of the case is within the magistrate court, and the preliminary hearing magistrate's duty is to determine whether there was probable cause for the arrest, and if the arrest warrant‘s affidavit doesn’t establish any probable cause, the magistrate must dismiss the charges because the restraint is unlawful.

      In State v. Funderburk, 259 S.C. 256 (1972), The South Carolina Supreme Court established that: “Where demand for a preliminary hearing following arrest on two warrants issued by magistrate charging offenses of grand larceny and receiving

 stolen goods, was made ten days before convening of next term of Court of General Sessions but such hearing was not held until after indictment was submitted to grand jury and true bill returned, the Court was without jurisdiction and, the jurisdiction of the grand jury being "coextensive" with the criminal jurisdiction of the Court, the indictment was a “nulity” and conviction was required to be vacated. Code 1962, ₴ 43-232; Const. Art. 1, ₴ 11. Acts of a court with respect to a matter as to which it has no jurisdiction is “void.” See: Carter v. Bryant, 429 S.C. 298 (2020), “Drawing on Franks v. Delaware, 438 U.S. 154 (1978), a facially valid warrant or other facially sufficiently legal process (be it a preliminary hearing ruling or even a grand jury indictment) does not cut off a person Fourth Amendment Right if the process has been so tainted that “the result is that probable cause is lacking.”

        Therefore, the magistrate at Petitioner's preliminary hearing had no legal nor jurisdictional authority to issue an order to bound Petitioner's case over to criminal court pursuant to a constitutionally deficient, as a result, was “null and void." Therefore, such order was “null and void," and because the grand jury is "coextensive" with the criminal jurisdiction of the Court, the Georgetown County Solicitor's Office had no jurisdiction to indict Petitioner pursuant to such order. Therefore, according to South Carolina law, Petitioner's indictment is also “null and void." According to U.S. Supreme Court law, because Petitioner's indictment is null and void, a conviction and sentence under such circumstances exceeds the jurisdiction of the court and holds no authority for the South Carolina Dep't of Corrections to hold him imprisoned under such sentence and he must be discharged. See: Exparte Wilson, 114 U.S. 417, (1885), "Holding Petitioner to answer for such infamous crime, and sentencing him to such imprisonment without indictment or presentment by a grand jury... exceeds the jurisdiction of that court," and, "there is no authority to hold the prisoner under the sentence."

      It was held in Kaptur v. Kapture (1934) 50 Ohio App 91, 197 NE 496, "where the petition disclosed that the affidavit sworn to by such affiant before the justice charged plaintiff with breaking into the house where plaintiff and her husband lived and taking property belonging to plaintiff's husband, all of which was known by the defendant justice of the peace and was shown on the hearing, and that with this knowledge the defendant justice issued a warrant for her arrest, bound her over to the grand jury and imprisoned her in the county jail, and that the grand jury thereafter return no indictment against her. The court said that if the allegations in the petition were true, the affidavit clearly contained no charge of the commission of a criminal offense by anyone, and under such facts the justice had no authority to issue a warrant of arrest or to bind plaintiff's case over to the grand jury." See also: Tracy v. Williams, 4 Conn. 107 (1821); Clark v. Hampton, 163 Ky. 698 (1915). See: Dynes v. Hover, 61 U.S. 65 (1857), “Where the Court has no jurisdiction or disregards rules of procedure for its exercise, all parties to illegal trials and imprisonment are trespassers on party aggrieved thereby, and he may recover in proper suit in civil court.” Elliott v. Peirsol's Lessee, 26 U.S. 328 (1928)," A judgment rendered by a court which does not have jurisdiction constitutes no justification and persons concerned in executing such judgment are considered in law trespassers. If the court acts without authority, it's judgments and orders are regarded as nulities and form no bar to recovery, "even prior to reversal."

False Imprisonment

        According to U.S. Supreme Court law, the moment that the Georgetown County Solicitor’s Office made a conscious decision to try Petitioner without jurisdiction pursuant to an indictment that was null and void, Petitioner's case became a criminal matter on behalf of The Georgetown County Solicitor’s Office for false imprisonment

 malicious prosecution, and anyone who participated in Petitioner's unlawful incarceration became “trespassers of the law.” Dynes v. Hoover, supra, 61 U.S. 65, (1857). Which means that the Georgetown County Solicitor’s Office had no jurisdiction to try Petitioner's in his first nor second trial.

          Petitioner further contends that according to U. S. Supreme Court law, the moment that the Honorable Judge Baxley made his ruling that the prosecution failed to meet its "burden of proof" to the extent that they could bring back a unanimous verdict, and then discharged his jury, any "alleged" jurisdiction terminated upon his case. See: U. S. v. Scott, supra, 437 U.S. 82 (1978); U. S. v. Wilson, supra, 420 U.S. 332 (1975). Exparte Lange, supra, 85 U. S. 163 (1873).

          Whirl v. Kern, 407 F. 2d 781 (1968), “On November 4, 1962, the indictment pending against Whirl were dismissed by nolle prosequi on the grounds that the evidence against Whirl was “insufficient to obtain and sustain a conviction.” Despite the dismissal, “Whirl languished in jail for almost nine months after all charges against him were dismissed and was not restored to his freedom until July 25, 1963. The central issue in this case is one of privilege, not of fact. The tort of false imprisonment is an intentional tort. It is committed when a man intentionally deprives another of his liberty without the other’s consent and without adequate legal justification. Failure to know of a court proceeding terminating all charges against one held in custody is not, as a matter of law, adequate legal justification for an unauthorized restraint. Were the law otherwise, Whirls’ nine months could easily be nine years, and those nine years, ninety-nine years, and still as a matter of law no redress would follow. The law does not hold the value of a man’s freedom in such low regards."

CONCLUSION

          For the foregoing reasons, the Petitioner should be granted habeas corpus relief, and the Court must issue an order to the SCDC to immediately release Petitioner from being held illegally incarcerated.

Date. ______________ Respectfully submitted,

                                                                  S,______________________

                                                                  Terron G. Dizzley, #359480

                                                                  Kershaw Correctional Institutional

4848 Gold Mine Highway

Kershaw S.C., 29067

BELOW ARE COPIES OF THE HONORABLE JUDGE MICHAEL BAXLEY'S RULING IN TERRON'S GERRHARD DIZZLEY'S FIRST TRIAL OF 2012, STATE V. TERRON GERHARD DIZZLEY, CASE NO. 2009-GS-22-007780, WHERE JUDGE BAXLEY DISCHARGED THE JURY ON THE GROUNDS THAT THE PROSECUTION FAILED TO MEET THEIR "BURDEN OF PROOF," WHICH ACCORDING TO CLEARLY ESTABLISHED UNITED STATES SUPREME COURT LAW WAS A "JUDGMENT OF ACQUITTAL." ATTACHED ALSO ARE OTHER DOCUMENTS WHICH SUPPORTS THE ABOVED PETITION FOR HABEAS CORPUS FOR IMMEDIATE RELEASE