TERRON DIZZLEY V.  WARDEN WILLIAM LANGDON; TONYA JAMES; CASE NO. 8:23-cv-4221-JD-JDA

EXPARTE EMERGENCY MOTION FOR IMMEDIATE RELEASE, DOUBLE JEOPARDY, FALSE IMPRISONMENT, LACK OF TRIAL COURT’S JURISDICTION TO IMPOSE SENTENCE, OBJECTIONS TO REPORT AND RECOMMENDATIONS, MOTION TO ALTER AND AMEND, AND CORRECT FALSE PROCEDURAL HISTORY AND LAW OF CASE, PETITION FOR EMERGENCY EVIDENTIARY HEARING

(NOTE: The following Motion is the response to the magistrate's report and recommendations to Terron Dizzley's 28 U.S.C. 2254, Federal Petition For Habeas Corpus, filed in 2023. This petition is now pending in the U.S. Court of Appeals, For the Fourth Circuit, pursuant Terron's Petition For Rehearing and Rehearing EnBanc. The following petition is the third habeas corpus filed by Terron in the U.S. District Court of South Carolina and appealed to the fourth circuit. The courts dismissed these petitions and never  adjudicated them on the merits for reasons that were contrary to the law. The issues raised in this petition for habeas corpus not only addresses Terron's illegal incarceration, but also brings transparency to how Terron was deprived of his direct appeal and PCR, without due process, and raises issues of ineffective assistance of counsel.).

Petitioner moves before this Honorable Court requesting an emergency Exparte hearing pursuant to this habeas corpus pursuant to his double jeopardy issues without waiting on a response from the Attorney General. It has been established by the Supreme Court of the United States for "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, and under such circumstances habeas corpus becomes a "writ of right which may not be denied." Exparte Lange, 85 U.S. 163 (1873), “Where probable ground is shown that the party is in custody under or by color of authority of the United States, and is imprisoned without just cause, and, therefore, has a right to be delivered, the writ of habeas corpus then becomes a writ of right which “may not be denied,” as it ought to be granted to every man who is unlawfully committed or detained in prison or otherwise restrained of his liberty. A second judgment of the same verdict is, under such circumstances, "void for want of power and affords no authority to hold the party a prisoner, and he must be discharged.” Petitioner contends that according to clearly established federal law, any delays in adjudicating his claims of double jeopardy would cause him further irreparable injury. See Mannes v. Gillespie, 967 F.2d 1310 (1992), "District court was not required to abstain from hearing habeas corpus petition by defendant who was facing refiled murder charges after state trial court, following dismissal of deadlock jury, sua sponte dismissed murder charges on grounds of insufficient evidence; defendant faced possibility of irreparable injury if forced to stand trial on murder charges that might be barred by double jeopardy."

          Petitioner contends that he has already suffered nine years and counting of "irreparable injury," whereas, the record proves that he was forced to stand trial for a second time in 2014 and was unlawfully convicted for murder, whereas, he was acquitted of these charges in his first trial of 2012 when the trial judge discharged his jury on the grounds that the prosecution failed to meet the "burden of proof" to convict him. Burks v. U.S., 437 U.S. 1 (1978). Therefore, according clearly established federal law, this court must not abstain from hearing Petitioner's habeas petition. Gilliam v. Foster, 63 F. 3d 287 (1995), "Balance of harm tiped decidedly in favor of petitioner, even though state claimed irreparable harm from dely in completing the retrial, as petitioners' loss of right not to be placed twice in jeopardy would be irreparable; and in view of likelihood of petitioners' success, as indicated by district court's grant of writ, stay would be denied."

            For the foregoing reasons this request for emergency hearing should be granted. See: Fay v. Noia, 372 v. U.S. 391(1963), "Conventional notions of finality in criminal litigation cannot be permitted to defeat manifest federal policy that federal constitutional rights of personal liberty are not to be denied without fullest opportunity for plenary federal judicial review. Federal court jurisidiction in habeas corpus proceeding on behalf of person in custody pursuant to state court judgment is confered by allegation of an unconstitutional restraint and is not defeated by anything that might occur in state court proceeding, and state procedural rules must yield to such overriding federal policy. Habeas corpus lies to enforce right of personal liberty, and the federal court, in proceeding on application for writ of habeas corpus in behalf of person in custody pursuant to state court judgment, has power to release person who is confined in denial of his right of personal liberty."

TIME LIMITATIONS ON FIFTH AMENDMENT VIOLATION OF DOUBLE JEOPARDY CLAUSE PURSUANT TO NOVEMBER 17, 2022 RULING FROM CIRCUIT COURT OF GEORGETOWN S.C. COURT OF GENERAL SESSIONS

       Petitioner objects to the magistrate's report and recommendations that his habeas corpus is time barred on the grounds that, the facts supporting the order is an incorrect and erroneous assessment of the procedural history of his case and is contrary to clearly established federal law as determined by the Supreme Court of the United States.

           Petitioner contends that the record proves that Grounds 1-5 is an appeal of the Honorable Judge Culbertson's ruling from his November 17, 2022 hearing pursuant to his "Emergency Exparte and Proposed Motion For Immediate Release, Double Jeopardy, False Imprisonment, Lack of Trial Court's Jurisdiction to Impose Sentence," which was filed every since October 28, 2021. (See: November 17, 2022 order and hearing transcript attached).

          On October 28, 2021, Petitioners, his mother, Gwendolyn B. Frasier, and his wife, LaQuesha Felder, filed "Proposed and Exparte Emergency Motions for Immediate Release of Terron Dizzley Pursuant to Double Jeopardy, False Imprisonment, Lack of Trial Court's Jurisdiction to Impose Sentence, and First and Fourteenth Amendment Rights to Familial Association." On April 12, 2022, the Honorable Judge Culbertson denied Petitioners emergency petition without ruling on the merits of the case. On April 25, 2022, Petitioners then filed an "Emergency Motion for Alteration, Modification, Amend, Reconsideration, and Recession of Order." When Judge Culbertson refused to respond to Petitioners "Motion for Alteration...," Petitioners filed a timely appeal to the South Carolina Court of Appeals, and also filed the same "Emergency Motion for Immediate Release..." in the S.C. Court of Appeals, exercising their rights to challenge subject matter jurisdiction even for the first time on appeal.

          The S.C. Court of Appeals dismiss Petitioners appeal as untimely. Petitioners then filed a "Motion to Reinstate" their appeal and the S.C. Court of Appeals granted Petitioners motion on the grounds that their "Motion for Alteration..." tolled the time for filing an appeal and remanded Petitioners case back to the circuit court for a ruling on Petitioners "Motion for Alteration...," and ordered that Petitioner's motion filed in the S.C. Court of Appeals be held in abeyance pursuant to a request from the Attorney General. Petitioners then filed a "Motion For Update And Request For Conditional Order," where they objected to the granting of the state's request to hold the "Emergency Petition For Immediate Release..." in abeyance filed in the S.C. Court of Appeals until Petitioner's case is resolved in the circuit court, on the grounds that according to clearly established state and federal law, a request for stay pursuant to a motion where a defendant raises issues of double jeopardy or deprivations of life, or liberty must not be granted because defendant would suffer "irreparable harm" by such delay. See: Gilliam v. Foster, supra, 63 F.3d 287 (4th Cir. 1995). Petitioners also objected to the S.C. Court of Appeals order remanding their case back to the circuit court, where the law is clear that subject matter jurisdiction may be raised at anytime, even for the first time on appeal, even sua sponte by the court, and that under such circumstances the appellate court must take notice on their own motion to assure the administration of justice, and that Petitioner is not being punished under a sentence imposed without jursidiction.

          Petitioners also addressed to the S.C. Court of Appeals that if they did not adjudicate their case, they would suffer "irreparable harm" by having their case remanded back to the circuit court who has refused to respond to the case and has been depriving Petitioner from accessing the courts for almost nine years, which is a felony crime of "obstruction of justice." Despite this, the S.C. Court of Appeals did not respond to Petitioners "Motion To Update And Request For Conditional Order." As a result, Petitioners case was remanded back to the circuit court where they were forced to hire an attorney because the Clerk of Court, of Georgetown County, Alma Y. White, again refused to schedule a hearing for Petitioners case despite the S.C. Court of Appeals order. Petitioner hired Attorney William G. Yaroborough III, who agreed to represent them pursuant to their "Emergency Motions." Attorney Yaroborough got the circuit court to schedule a hearing for November 17, 2022.

          The record proves that Attorney Yarborough refused to address all of Petitioner's issues at the hearing, and the Honorable Judge Culbertson refused to allow Petitioner to testify in his defense upon request by Attorney Yarborough. The record proves that, as a result of these violations of Petitioner's rights, he requested to Judge Culbertson to fire Attorney Yarborough and represent himself, and Judge Culbertson denied his request, therefore, violating his Sixth Amendment right to self-representation. See: Farretta v. California, 422 U.S. 808 (1975). The record also proves that despite the S.C. Court of Appeals order for remand ordering the circuit court to issue an order pursuant to "findings of facts and conclusions of law," the Honorable Judge Culbertson still issued the same exact order, simply indicating denial of Petitioner's double jeopardy issues, stating one word "mistrial."

          After the hearing, on March 28, 2023, after receiving the transcript from the hearing, Petitioner filed an "Emergency Motion to Relieve Counsel and Proceed Pro se," "Initial Brief of Appellants," "Habeas Corpus in Aid of Appellate Jurisdiction," Motion to Correct the False Procedural History and Law of Case And Request for Hearing." Although, Petitioner explained to the Court of Appeals that he entered into a fee agreement with Attorney Yarborough to pay him $7,500 "only" for representation in the circuit court at the November 17, 2022 hearing, and an additional $7,500 retainer, which was refundable if Petitioner did not hire him to represent him on appeal, the S.C. Court of Appeals denied his "Emergency Motion to Relieve Counsel and Proceed Pro se." Therefore, violating Petitioner's Sixth Amendment rights to "self-representation," Farretta v. California, 422 U.S. 808 (1975); "counsel of choice," Caplin & Drysdale v. U.S., 491 U.S. 617 (1989); and "conflict free counsel," Cuyler v. Sullivan, 446 U.S. 335 (1990).

          Petitioner contends that the S.C. Court of Appeals actions of forcing Attorney Yaroborough's illegal representation on him amounts to an unlawful seizure of his $7,500 retainer and awarding it to Attorney Yarborough to represent Petitioner illegally, which violates Petitioner Sixth Amendment right to "counsel of choice." and due process. See: Louis v. U.S., 136 S.Ct. 1083 (2016). Petitioner appealed these orders to the S.C. Supreme Court and the Court refused to protect Petitioner's rights, by affirming the S.C. Court of Appeals unlawful orders which enabled Attorney Yarborough to commit felony crimes against Petitioner of unlawfully stealing Petitioner's $7,500 retainer, which also deprived Petitioner from raising his issues on appeal. This is the third time that lower courts of South has conspired with an attorney to unlawfully seize Petitioner's funds meant for "counsel of choice," and coerced these attonerys not raise Petitioner's claims to prevent Petitioner from being heard on his constitutional claims. (See: Ground 8 and Motion to Correct the False Procedural History and Law of Case).

          Petitioner contends that he is not time barred from filing a habeas corpus pursuant to Judge Culbertson's November 17, 2022 ruling denying his double jeopardy claims. Livingston v. Murdaugh, 183 F. 3d 300 (4th Cir. 1999), "state-court defendant, whose prior conviction for felony driving under the influence had been reversed on appeal, 488 S. E. 313, sought federal habeas corpus relief, contending that his retrial on reckless homicide charge violated double jeopardy. The district court found that Livingston had exhausted his state remedies. See 28 U.S.C.A s 2254 (1)(A). We are mindful of the deference that is owed to the state court's adjudication of Livingston's claim. Given the circumstances in this case, however, we have no choice but to respect the constitutional protection a defendant enjoys against being "twice put in jeopardy" for the same offense. It reasoned that appeal of denial of a double jeopardy claim would be futile because the South Carolina Supreme Court has held that "an order denying a double jeopardy claim is not immediately appealable." Gillian v. Foster, 63 F.3d 287 (1995), "Colorable Double Jeopardy Clause claim is preeminent example of the few "unusual circumstances" justifying federal court intervention in state proceeding. See Mannes v. Gillespie, 967 F. 2d 1310, 1312 (9th Cir. 1992), cert. denied, 506 U.S. 1048, 113 S. Ct. 964, L.Ed 2d 121 (1993); Salter v. Lesley, 977 F.2d 1259, 1261 (8th Cir. 1992); Showery v. Samaniego, 814 F.2d 209, 201 n. 5 (5th Cir. 1987); Doe v. Donovan, 747 F.2d 42, 44 (1st Cir. 1984) (or curiam); see also Willhauck v. Flanagan, 448 U.S. 1323, 1325, 191 S. Ct. 10, 11, 65 L. Ed 2d 1147 (Brennan, Circuit Justice 1989). Indeed, the justification for federal interference in state criminal proceedings is at least as compelling when the retrial itself irretrievably deprives the defendant of his constitutional double jeopardy rights as when the prosecution is undertaken in bad faith to harass the defendant. Consequently, although federal court interference with ongoing state criminal proceedings should be undertaken in only the most limited, narrow, and circumscribed of situations, when the record clearly demonstrates a colorable showing that the trial will constitute a violation of the defendant's double jeopardy rights, federal court intervention is appropriate."

          Petitioner contends that the record proves that he raised these double jeopardy issues in his January 7, 2020 petition for habeas relief and this district court dismissed the petition "without prejudice" for "alleged" failure to exhaust state remidies, without reaching his underlying constitutional claims, which was an erroneous assessment of the facts and contrary to clearly established federal law. See: Terron Dizzley v. Warden Stephon, C/A No. 8:20-cv-00126-SAL. According to the aboved laws, the moment that the Honorable Judge Baxley discharged Petitioner's jury on the grounds that the prosecution failed to meet their "burden of proof" to convict him and ordered a new trial instead of entering a verdict of acquittal as required by clearly established federal law as determined by the Supreme Court of the U.S., see Burks v. U.S., 437 U.S. 1 (1978), Petitioner had a right to seek federal habeas relief to protect his double jeopardy rights from being tried again for the same offense, which should have been done by his trial counsel. Also, the moment that The Honorable Judge Culbertson on November 17, 2022 denied Petitioner's "Emergency Motion For Immediate Release, Double Jeopardy...," Petitioner had a right to seek federal habeas relief pursuant his ruling. See Livingston, supra, 183 F.3d 300 (4th Cir. 1999).

          Therefore, this district court erred in dismissing Petitioner's January 7, 2020 petition for habeas relief pursuant to his double jeopardy issues "without prejudice" for procedural reasons which were contrary to the law, causing Petitioner to suffer further "irreparable harm" of being held unlawfully under an unlawful sentence imposed on him that violates the Double Jeopardy Clause of the Fifth Amendment of the U.S. Constitution. Petitioner contends that the record proves that he has been dilligently pursuing his rights, and the lower courts and this district has prevented him from seeking habeas relief. Therefore, for the foreging reasons, according to clearly established federal law as determined by the Supreme Court of the U.S., under such circumstances, Petitioner is not time barred from federal habeas relief on his double jeopardy issues. See Holland v. Florida, 560 U.S. 631 (2010).

           Petitioner contends that according to clearly established U.S Supreme Court law, when the district court "denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim," the petitioner can satisfy sec. 2253(c)(2) by establishing that "jurist of reason would find debatable whether the petition states a valid claim of the denial of a constitutional right and that jurist of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 539 U.S. 473, 484 (2000). Petitioner contends that according to the facts supported by the record of his first trial, any jurists of reason would find debatable that Petitioner stated a valid double jeopardy claim of denial of his Fifth Amendment Constitutional rights when he was tried again for the same offense after the trial court clearly established that the prosecution faied to meet their "burden of proof" to convict him, and any jurists of reason would find debatable that this district court's dismissal of his January 7, 2020 petition for habeas relief "without prejudice" pursuant to his double jeopardy issues on procedural grounds for "alleged" failure to exhaust state remidies without reaching his underlying constitutional claims was incorrect in its procedural ruling. Petitioner contends that jurists of reason would also find debatable the district court's order denying Petitioner's September 18, 2023 habeas petition pursuant to his double jeopardy claims for procedural reasons as time barred is an incorrect procedural ruling under such circumstances. See: Miller-El Cockrell, 537 U.S. 322 (2003).

          Therefore, this court must not delay in adjudicating Petitioner's double jeopardy claims on the merits to prevent Petitioner from suffering any further irreparable harm.

 Standard for Evaluating Judgments of Acquittals for Purposes of DoubleJeopardy, May Not Be Controlled By the Label of the Judge's Ruling,

          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 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.” 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)."

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 a procedural ground "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 Hung Jury/ Mistrial Would Violate Double Jeopardy Rights

          A ruling from a judge declaring a mistrial/hung jury, sua sponte, without the defendant's consent, does not automatically take away the defendant's rights under the Double Jeopardy Clause, and allows the State to retry the case. The controlling cases which setforth the standard that "must" be applied when determining whether a retrial following a ruling declaring a hung jury/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); U.S. v. Horn, 583 F. 2d 1124 (1978).

GROUND 1

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

False Imprisonment, Double Jeopardy, Lack of Trial Court's Jurisdiction to Sentence. The Circuit Court Judge stated an error of law in his ruling at the November 17, 2022 hearing and acquitted Petitioner again when he stated that the trial judge’s ruling in Petitioner's first trial of 2012, which was a jury trial, discharging Petitioner's jury on the grounds that the prosecution failed to meet their burden of proof to convict Petitioner was a judgment of acquittal, but judgments of acquittals only applies to bench trials and not jury trials.

Supporting Facts

       The purpose of the November 17, 2022 hearing in Georgetown, S.C. was for the Honorable Judge Culbertson to determine whether the Honorable Judge Baxley’s ruling in Petitioner's first trial of 2012, discharging his jury on the grounds that the prosecution was unable to meet their "burden of proof" to convict him was an acquittal for purposes of double jeopardy.

(See: Trial Transcript of 2012, P. 314, L. 4-18- P. 315, L. 1-8.).

          "Now what you told us is that you can't reach a unanimous decision, and I would say 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."

Petitioner contends that the record shows that at the November 17, 2022, hearing, the Honorable Judge Culbertson admitted that the Honorable Judge Baxley’s ruling in his first trial 2012 was an acquittal. However, Judge Culbertson 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 he 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.

17 THE COURT : I understand that argument, but I'm

18 talking about the first trial. Because the law is

19 clear: If you have a hung jury, the judge declares a

20 mistrial, and then they can try him a second time if

21 it was a hung jury where the jury could not reach a

22 unanimous decision. Now, after a second hung trial,

23 they can't try him a third 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.

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 United States Supreme Court controlling cases 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 Smallis v. Pennsylvania, 476 U.S. 140 (1986), and Smallis 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 to convict 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 United States Supreme law: (1) The Honorable Judge Culbertson’s ruling was an acquittal despite his intentional misinterpretation of the law that “judgments acquittals” pursuant to “insufficient evidence” to convict only applies to bench trials and not jury 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).” (2) The Honorable Judge Culbertson’s "label" that he placed on his ruling of a “denial” of Petitioner's Motion for Alteration, Modification, Amend, Reconsideration, Rescission of Order,” does not control the analysis of whether his determination of the Honorable Judge Baxley’s ruling in Petitioner's first trial of 2012 was an acquittal, rather, it is substance of the Honorable Judge Culbertson’s ruling that proves that he also acquitted Petitioner. Whereas, it is clearly established by the U.S. Supreme Court that judgments of acquittals pursuant to prosecution's failure to meet their "burden of proof" applies to both bench and jury trials. See: United States v. Martin Linen Supply Co., 430 U.S. 564 (1977); Evans v. Michigan, supra, 568 U. S. 313 (2013).

For the foregoing reasons, Petitioner was acquitted again by the Honorable Judge Culbertson at his November 17, 2022 hearing in Georgetown, S.C. Therefore, Petitioner must be immediately discharged from nine years and counting of being held falsely imprisonment.

GROUND 2

JUDGMENT OF ACQUITTAL, DOUBLE JEOPARDY, Trial of 2012

False Imprisonment, Double Jeopardy, Lack of Trial Court's Jurisdiction to Impose Sentence. Judgment of Acquittal. Circuit court's ruling pursuant to the November 17, 2022 hearing, pursuant to Petitioner's "Emergency Exparte and Proposed Motions for Immediate Release, Double Jeopardy, False Imprisonment, Lack of Trial Court's Jurisdiction to Impose Sentence," that the the Honorable Judge Baxley's ruling in Petitioner's first trial of 2012, discharging Petitioner's jury on the grounds that the prosecution failed to meet their "burden of proof" to convict him was not an acquittal based solely on the "label" that the Honorable Judge Baxley placed on the ruling as a mistrial/hung jury, was contrary to clearly established federal law as determined by the United States Supreme Court when evaluating whether a ruling is a "judgment of acquittal" for purposes of double jeopardy.

          Petitioner contends that the Honorable Judge Culbertson’s order indicates that he merely looked at the “label” of the Honorable Judge Baxley’s ruling of his first trial of 2012, which indicates that Judge Baxley declared a mistrial/hung jury, and, therefore, determined that such “label” automatically prevents Petitioner from exercising his constitutional guarantees under the Fifth Amendment Double Clause. However, according to clearly established United States Supreme Court laws, when evaluating a ruling to determine if it is a judgment of acquittal, for determining whether a decision dismissing a criminal case bars retrial under the Double Jeopardy Clause, may not be determined simply by the label, form, caption, or the judge’s characterization of his/her own actions, rather, this determination must be based on the substance of the court’s decision. This determination requires the reviewing court to determine whether the court’s ruling, “whatever it’s label” is based on insufficient evidence to convict. See: 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.” Quoting U.S. v. Martin Linen Supply Co., 430 U.S. 564 (1977).

Supporting Facts

          The constitutional guarantees of the Fifth Amendment Double Jeopardy Clause which was violated against Petitioner in this case is grounded in the United Supreme Court Laws which defines “acquittals” for purposes of double jeopardy. United States Courts Legal Glossary defines Acquittal – “A jury verdict that a criminal defendant is not guilty or the finding of a judge that the evidence is insufficient to support a conviction.”

After the State of South Carolina rested its case in Petitioner's first trial of 2012, trial counsel moved for a directed verdict of not guilty on the grounds that the prosecution failed to present any evidence of the elements of murder, and most importantly, that the prosecution failed to present any evidence that identified Petitioner as the person that committed the offense for which he was charged. The Honorable Judge Baxley denied directed verdict, and trial counsel renewed his directed verdict motion after the presentation of Petitioner's alibi witnesses. See also: 2012 Transcript (of Court Reporter, Krystal Smith), P. 66, L. 15 – 17. See: Transcript of 2012 trial ( of Court Reporter Grace Hurley), P. 299, L. 19 – P. 300, L 1 – 4.

In "The Charge on the Law," by the Honorable Judge Baxley to the jury before closing arguments and deliberations, (See: Trial Transcript of 2012, Court Reporter, Crystal Smith, Tr. P. 74, L. 8 – 25, citing from 20 – 25). Judge Baxley stated the following: “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/hung jury after stating that it was not a failure on the jury’s part that they could not reach a unanimous decision, but, that this was “a strong message to the prosecution that they are unable to meet the “burden of proof” to the extent that they could bring back a unanimous verdict.”

It has been established by the U.S. Supreme Court for "fourty-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, by granting a new trial after finding that the prosecution failed to meet their "burden of proof" to convict him violates the Fifth Amendment 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 the same rulings as 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 "represente[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.”

Petitioner also contends that the Honorable Judge Baxley’s decision to spontaneously declare a mistrial was based on the same reasons that defense counsel moved for a directed verdict of not guilty – because the prosecution failed to meet their burden of proof. See: Transcript of 2012 trial ( by Court Reporter, Grace Hurley). Ruling of the Honorable Judge Michael Baxley., Pages 314, Lines 4 – 18 through Pages 315, Lines 1 – 8. “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 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.”

Therefore, according to the Honorable Judge Baxley’s own charge on the law to the jury, if the state failed to meet their "burden of proof" to convict Petitioner, he is entitled to an acquittal. Moreover, pursuant to Judge Baxley’s own ruling that the prosecution failed to meet the "burden of proof" to convict Petitioner, and clearly established U.S. Supreme Court law, his ruling was a "judgment of acquittal." Burks, supra, 437 U. S. 1 (1978); 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.”

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 finds that the state failed to meet their "burden of proof," which is, to enter a verdict of acquittal.

The United States Supreme Court’s precedent cases on judgments of acquittals, establishes that “A mistaken acquittal is an acquittal nonetheless.” See: Fong Foo v. U. S., 369 U. S. 141 (1962); Sanabria v. U. S., 437 U. S. 54 (1978); Evans v. Michigan, 568 U. S. 313 (2013). However, in Petitioner's case, it was not a mistaken acquittal, but a mistaken declaration of a mistrial, after the recitation by the Honorable Judge Baxley of the legal standard for an acquittal.

In our Fourth Circuit, it was determined in U. S. v. Alvarez, 351 F. 3d. 126 (2003 4th

Cir.), “Judgment of acquittal entered by District Court after jury deadlocked did not implicate double jeopardy clause. In its order, The District Court never expressively stated that it undertook review the sufficiency of the evidence, never recited the standard for an acquittal - “that the evidence was insufficient for any reasonable jury to return a unanimous verdict of guilty." In response to this conclusion, Alvarez and Gonzelez argued that the district court corrected any deficiencies in its judgment of acquittal by recharacterizing the judgment in a later order that denied the government’s motion for detention of the defendants. In the detention order, the district court characterized its earlier judgment of acquittal as holding that “there was insufficient evidence for any reasonable jury to return a unanimous verdict of guilty." If that, in fact, had been the basis for the district court’s judgment of acquittal, we would agree with the defendant that this appeal would be barred. A judgment of acquittal may not be determined simply by the form or caption of the court’s order, The Court of Appeals determines whether the ruling

of the judge whatever its label, actually represents a resolution correct or not, of some or

all of the factual elements of the offense charged.”

          However, in Petitioner's case, the Honorable Judge Baxley clearly, expressively stated that he undertook the review of the sufficiency of the evidence, and recited almost word-for-word, (verbatim), what Alvarez has determined is the standard for acquittal, that his decision to declare a mis-trial was "not" a failure on the part of jury that they could not reach a unanimous verdict, but that his decision to declare a mistrial was a “strong message to the prosecution that they were unable to meet the “burden of proof” to the extent that they could reach a unanimous verdict." Therefore, the Honorable Judge Baxley's characterization of his own actions as a mistrial/hung jury does not control the classification of his actions, and accordingly to clearly established federal law, Judge Baxley’s ruling was a judgment of acquittal. 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.” 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 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.” 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 defendanydefendant for the offense charged.”

 According to clearly established United States Supreme Court Law, Judge Baxley’s ruling was an "acquittal." See also Pages 315, L 1 - 8.

 “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."

 According to the U.S. Supreme Court, not only was Judge Baxley’s ruling an “acquittal," but such a ruling: (1) Barred retrial under the Fifth Amendment Double Jeopardy Clause. See: Smalis v. Pennsylvania, 476 U.S. 140 (1986); Smith v. Massachusetts, 534 U.S. 462 (2005); (2) Terminated any alleged jurisdiction of Petitioner's case and may not be appealed. Exparte Lange, 85 U. S. 163 (1873); 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,” and; (3) A second trial, judgment, and sentence, affords no legal nor jurisdictional authority for the South Carolina Department of Corrections to hold Petitioner's in prison for the same offense and he “must” be discharged. Exparte Lange, 85 U.S. 163 (1873), “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 he must be discharged”.

 For the foregoing reasons, according to clearly established United States Supreme Court law, the Honorable Judge Baxley’s ruling in Petitioner's first trial of 2012 was an acquittal. Therefore, double jeopardy barred Petitioner's retrial of 2014, in which he was unlawfully convicted and sentenced. Therefore, Petitioner must be immediately discharged from nine years and counting of being held falsely imprisoned.

GROUND 3

DOUBLE JEOPARDY

“MANIFEST NECESSITY OR ENDS OF PUBLIC JUSTICE”

The trial judge's sua sponte declaration of a mistrial was not dictated by a manifest necessity or ends of public justice and violated Petitioner's Fifth Amendment rights under the Double Jeopardy Clause.

  Petitioner contends that the Honorable Judge Culbertson's order also fails to address his issue that there was no “manifest necessity” for Judge Baxley to declare a mistrial/hung jury. By failing to address this issue also implies that Judge Culbertson relied solely on Judge Baxley’s “label” as a determination that the characterization of Judge Baxley’s own actions is what determines whether double jeopardy bars retrial.

However, this is contrary to clearly established United States Supreme Court law. According to clearly established federal law, when a judge declares a mistrial, sua sponte, without defendant’s consent, a “manifest necessity determination” is the appropriate test for determining whether a defendant may be retried without violating double jeopardy principles. 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 favour 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.”

 Petitioner contends that Judge Culbertson’s order does not indicate that he evaluated the record in his first trial to determine if there was a “manifest necessity” for the Honorable Judge Baxley to declare, sua sponte, a mistrial.

Supporting Facts

Petitioner contends that the Honorable Judge Baxley’s ruling of “acquittal” resulted from an improvidently granted mistrial/hung jury 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/hung jury. See: Transcript of 2012 by Court Reporter, Krystal Smith, trial pages 116 – 125. See also: Transcript of Court Reporter, Grace Hurley, transcript 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 enter 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 sent another not indicating that they were still unable to reach a verdict. Trial judge then, called the jury in the courtroom and spontaneously, in the presence of the jury, with no advance warning or notice to the defense counsel or the court, 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 were unable to meet their burden of proof” to the extent that they could bring back a unanimous verdict."

Petitioner contends that the record shows that there was no manifest necessity to declare a mistrial 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 exists 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.” See: U.S. v. Horn, 583 F. 2d 1124 (1978 10th Cir.),“ 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.” 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. Defense 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 defense 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: 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); Benton v. Maryland, 395 U.S. 784 (1969); Wade v. Hunter, 336 U.S. 684 (1949); Illinois v. Somerville, 410 U.S. 458 (1973); 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, prolongs 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/hung jury 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.

FALSE IMPRISONMENT

Petitioner contends that according to United States 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, the 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).

According to United States Supreme Court Law, the moment that the Georgetown County Solicitor’s Office made a conscious decision to try Petitioner again for the same offense and sentenced him to imprisonment without jurisdiction, Petitioner''s case became a criminal matter on behalf of The Georgetown County Solicitor’s Office for false imprisonment, and anyone who participated in Petitioner''s unlawful incarceration became “trespassers of the law.” Dynes v. Hoover, 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 courts.” 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.”

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 regard.”

For the foregoing reasons, must be immediately released from being held falsely imprisoned for nine years and counting.

GROUND 4

 False Imprisonment, Trial Court exceeded its jurisdiction by holding Petitioner to answer for the infamous crime of murder and sentencing Petitioner to Imprisonment pursuant to an indictment that is null and void, which violated Petitioner's Fifth Amendment rights.

Petitioner contends that the Honorable Judge Culbertson’s order fails to address this issue.

Supporting Facts

Petitioner contends that according to the Fourth Amendment of the United States 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, of which he turned himself in under and claimed his innocence, however, not knowing that his arrest was unlawful.

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.”

    On December 11, 2008, Investigator Melvin Garrett of the Georgetown, South Carolina Police Department applied for an arrest warrant for Petitioner for murder without probable cause and prepared an affidavit in the arrest warrant that does not provide any information at all that would enable a magistrate judge to determine probable cause. After hiring a Private Investigator, Bennie L. Webb, it was also found that Investigator Garrett made “false declarations” to the magistrate to obtain Petitioner's arrest warrant. See: Exhibits.

  Petitioner contends that an evaluation of his arrest warrant’s affidavit compared to the requirements of the Fourth Amendment of The United States Constitution, and clearly established U.S. Supreme Court law proves that his arrest warrant is constitutionally deficient. Whereas, Petitioner's arrest warrant only recites 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.

 Petitioner contends that The United States Supreme Court in Giordenello v. U. S., 357 U.S. 480 (1958), determined that Giordenello's affidavit in his arrest warrant was constutionally 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 and 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. Petitioner contends that a comparison of his affidavit in his arrest warrant with the affidavit in the arrest warrant in Giordenello proves that they are identical and provide no sufficient basis for which a finding of probable cause could be made.

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 Aundry 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”.

          Therefore, The United States Supreme Court has determined that such affidavit as in Petitioner's arrest warrant is constitutionally deficient under The Fourth Amendment, which resulted in an unlawful seizure, false imprisonment and unlawful pre-trial detainment. See: Illinois v. Gates, 462 U.S. 239 (1983); Whiteley v. Warden, Wyo. State Pen., 401 U.S. 560 (1971); Malley v. Briggs, 475 U.S. 335 (1986); Beck v. Ohio, 379 U.S. 89 (1964); Wong Sun v. U.S., 371 U.S. 471 (1963); Franks v. Delaware, 438 U.S. 154 (1978).

JURISDICTION, ARREST WARRANT, INDICTMENT

          Petitioner contends that the entire process that led up to his “alleged” indictment was illegal and without jurisdiction. See: Lo-Ji Sales, Inc., v. York, 442 U.S. 319, 326-27 (1979), “Holding that judge who issued a search abandoned his judicial function and was not neutral and detached when he led police in search.” U.S. v. Leon, "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 that 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 Lo-Ji, the magistrate, 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 Petitioner of his liberty.

 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 invalid, "null" and “void,” and, therefore, knew that Petitioner was being held unlawfully. Therefore, the preliminary hearing magistrate had no jurisdictional nor legal authority to conduct a preliminary hearing (Note: Petitioner was literally being held kidnapped at the preliminary hearing, because the Georgetown County Sheriff's Dep't 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. 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. 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." Instead, the magistrate, at Petitioner's preliminary hearing, unlawfully, and without jurisdiction, bound Petitioner's case over to criminal court despite the fact that Petitioner was being held unlawfully.

           Petitioner contends that Lo-Ji and Leon also applies to the magistrate at his preliminary hearing, who is also supposed to be neutral and detached. Therefore, by bounding Petitioner's case over to criminal court knowing that Petitioner was being held unlawfully pursuant to an invalid arrest warrant, also abandoned her judicial function as a neutral and detached magistrate and 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 the 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."

 In South Carolina law, State v. Funderburk, 259 S.C. 256 (1972), 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.” 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 an invalid arrest warrant that was "null" and "void." Therefore, the preliminary hearing magistrate's order to bound Petitioner case over to the criminal court under such circumstances, was also "null" and "void." Petitioner contends that because South Carolina law establishes that 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 clearly established U.S. Supreme Court law, Petitioner's "alleged" indictment was not returned by a "legally constituted" grand jury, and was also "null and void." Costello v. U. S. 350 U.S. 363 (1956), “Indictment returned by a “legally” constituted and unbiased grand jury, like an information drawn by the Prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more.”

          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."

          For the foregoing reasons, Petitioner must be immediately released from being held falsely imprisoned for nine years and counting.

GROUND 5

Petitioner was denied effective assistance of counsel under The Sixth Amendment to the U.S. Constitution when trial counsel failed to investigate and challenge the veracity of Petitioner’s arrest warrant and raise meritorious Fourth Amendment issue and move to suppress any evidence and testimony pursuant to any in-court or out-of-court identification of Petitioner on the grounds that they were obtained as a result of “fruit of the poisonous tree,” which tainted the entire judicial process resulting in a denial of Petitioner’s right to due process and false imprisonment.

Supporting Facts

Petitioner contends that he was denied the right to a fair trial by trial counsel’s gross incompetence in failing to raise meritorious Fourth Amendment claim and make a suppression motion. See: Kimmelman v. Morrison, 477 U.S. 365 (1986), "On petition for certiorari, the Supreme Court, Justice Brennan, held that: (1) restrictions on federal habeas review of Fourth Amendment claims announced in Stone v. Powell did not extend to petition's Sixth Amendment claims of ineffective assistance of counsel; (2) assistance rendered by defense counsel was constitutionally deficient; and (3) hearing was required to determine whether defendant was prejudiced by trial counsel's failure to make timely suppression motion."

 Petitioner contends that had trial counsel simply looked at his arrest warrant he would've noticed that Investigator Melvin Garrett prepared an affidavit in the arrest warrant that does not provide any information at all that would enable a magistrate to determine probable cause to issue the arrest warrant. Therefore, according to the Fourth Amendment, Petitioner's arrest warrant is constitutionally deficient and held no legal authority to arrest and restraint Petitioner of his liberty. See: and incorporate Ground 4, and exhibits.

Petitioner hired a Private Investigator, Bennie L. Webb, of "The Palmetto Center for Law and Justice," to investigate the process of obtaining his arrest warrant, and it was found that Investigator Garrett made “false declarations” to the magistrate to obtain Petitioner's arrest warrant. See: And incorporate facts from Ground 4 and Exhibits.

  FALSE DECLARATIONS TO THE MAGISTRATE

Petitioner contends that the truth which was omitted from the affidavit, is that the entire investigation of his case rested solely on an alleged hearsay statement by victim that “D” or “Little D” was the person who shot him. Witnesses who alleged that the victim made this statement indicated that he never stated to them who this “D” or “Litttle D” was, no description, or whether this individual is white, black, Hispanic, male, female, etc., and the witnesses indicated that the individual had on a mask and could not be identified.

 Petitioner contends that according to Private Investigator, Bennie L. Webb’s investigative report, on April 26, 2018, he spoke to Investigator Garrett and Investigator Garrett informed him that he told the magistrate that he had statements from Naomi Alston and Aundry Evans, Sr. that victim told them that “Terron Dizzley” shot him. However, such statements do not exist, and Investigator Garrett admitted to this in Petitioner's second trial of 2014. Therefore, Investigator Garrett intentionally made “false declarations” to the magistrate, which was used to obtain Petitioners arrest warrant, without providing any information in the arrest warrant’s affidavit which would establish probable cause. See: exhibits.

See: Exhibit 1. Aundry Evans, Sr.; Investigative Report of Investigator Nelson on December 1, 2008 at 11:20 p.m. at the hospital in Georgetown, S.C. “When asked who shot him, the victim responded he was speaking with his father and did not wish to speak with me. When asked again, victim stated someone just came in and shot him and asked me to leave …. Victim's father then exited the room. I inquired if his son had disclosed any information to him, to which Mr. Evans, Sr. stated “ he had not."

 See: Exhibit 3. However, the next day, Aundry Evans Sr. gives another statement. December 2, 2008, 0500, “Aundry, Sr. stated that his son had informed him in the Georgetown Hospital that “Little D” was the individual who shot him. Mr. Evans, Sr. did not know who “Little D” was."

The totality of the circumstances of Aundry Evans, Sr.’s statements proves that: (1) None of Mr. Evans, Sr. statements stated that his son told him that "Terron Dizzley" shot him; (2) Evans, Sr. gave two statements that are inconsistent as to material points; (3) Aundry Evans, Sr.’s statements clearly reveals that if his son (victim) did make the statement “Little D” shot him, he never indicated who this “Little D” was. Whereas, the incident report states that: “Mr. Evans, Sr. did not know who “Little D” was.”

See: Exhibit 2. Naomi Alston: Investigator Nelson’s Incident Report, 12-1-2008. 11:20 p.m., second Page, “I responded to the ER where I attempted to speak to the victim, and he would not cooperate and would not provide any information…. I then went to the waiting room where the victim’s fiancé,’ Naomi Alston, provided me with the victim’s information and also stated the victim told her that the male that shot him was called “Little D.” Alston stated that "she believed” the suspect’s name was Tyron Dibsly, but “she knew” he was called “Little D.”

See also: Testimony of Naomi Alston, Trial, 2012, Tr. P. 98, L25 – P. 99, L1 – 2.

25. Q. Did he talk about the identity of the shooter at all

1. in the hospital to you?

2. A. He didn't.

Investigator Garrett, Trial of 2014, P. 550, L6 – 15

6. Q. And in terms of why, you were, you were trying to find

7. Terron Dizzley. You had, you had already heard, at least,

8. that Naomi Alston claimed that Terron Dizzley, that he

9. identified Terron Dizzley as the person that shot him? You

10. knew that; right?

11. A. No. What I heard was that he identified a person by the

12. name of “Little D” that shot him.

13. Q. Well, “Little D,” but then you said “Little D” you

14. wanted someone to confirm that “Little D” was Terron Dizzley?

15. A. That’s correct.

    See also: Trial of 2014, Tr.P. 544, L1 – 21 specially P. 545, L19 – 21.

            19. A. “After identifying who

             20. “we thought”, was Little D. of course, we went to try to track

             21. him down and speak with him.

Investigator Nelson, (2014, Tr. P. 482, L6 – P. 483, L1 – 4); Investigator Nelson testified in Petitioner’s trial that he asked Aundry Evans, Jr. several times at the hospital on the night of December 1, 2008 did he know who shot him and Aundry would not provide any information.

Officer Jarred Bardon, (2014, Tr. P. 463, L18 – 20)

18. Q. Yeah. Did the victim make any statements to you

19. regarding who he thought shot him?

20. A. “He did not.”

          Petitioner contends that had Investigator Melvin Garrett provided the truth to the magistrate that his entire investigation rested solely on "vague" nicknames, "D" and "Little D," which did not identify anyone, pursuant to an alleged "hearsay statement," then Petitioner's arrest warrant would have been considered as a "John Doe" warrant, and, therefore, would still be constitutionally insufficient. See: U.S. v. Doe, 703 F. 2d. 745 (1983, 3rd Cir.), “Describing its subject as “John Doe, a/k/a Ed” was constitutionally insufficient and that insufficiency was not cured by fact that law enforcement agency who executed warrant had independent knowledge that defendant was person for whom warrant was intended. The “John Doe Warrant” in this case does not reduce to a tolerable level the number of potential subjects: anyone with the first name, "Ed" – and, there, must be thousands of "Ed" in the Pittsburg area – is fair game.” See: also

 West v. Cabell, 153 U.S. 78 (1894), "A warrant for the arrest of James West without other description of the person intended, give no authority to arrest a person whose name is V. M. West, or Vandy West, and who have never been known as James West; and it is immaterial that such person was the one the commissioner had in mind to issue warrant."

          The omission of this truth was misleading and its inclusion and circumstances surrounding these witnesses’ statements would have defeated probable cause. Whereas, Petitioner has never gone by the nicknames “D” nor “Little D," and there must be thousands of individuals with the nickname “D.” Petitioner contends that because his arrest warrant’s affidavit does not state any probable cause at all, there is nothing for the court to consider as any remaining content of the affidavit to determine if it is still sufficient to establish probable cause. See: Franks v. Delaware, 438 U.S. 154 (1978).

          Petitioner contends that his arrest warrant tainted the entire judicial process which led to his false imprisonment for nine years and counting, because the legal process he received failed to establish what the Fourth Amendment makes essential to believe that he committed a crime. Manuel v. City of Joliet, 137 S. Ct. 911 (2017), “Fourth Amendment prohibits government officials from detaining a person in the absence of probable which can happen when the police holds someone without any reason before the formal onset of a criminal proceeding or when legal process itself goes wrong, such as when judge’s probable-cause determination is predicated solely on a police officer’s false statements. The Fourth Amendment governs a claim for unlawful pretrial detention even beyond the start of legal process." Ellis v. U.S., 356 U.S. 674 (1958), " The Supreme Court held that an issue on appeal as to probable cause for an arrest could not be necessarily characterized as frivolous and application for leave to file informa pauperis should have been granted."

FRUIT OF THE POISIONOUS TREE, DUE PROCESS VIOLATION

 Petitioner contends that such false and misleading in-court identification of him as “the one” referred to by nickname pursuant to the alleged “hearsay” statement by victim that “D” or “Little D” shot him was a direct connection to the same false declarations that Investigator Garrett made to the magistrate to obtain Petitioner's arrest warrant.

          Petitioner's contends this evidence should have been suppressed as “fruit of the poisonous tree.” See: Humbert v. Mayor and City Counsel of Baltimore City, 866 F. 3d. 546 (2007 4th Cir.),“(1) Statement in arrest warrant application, that rape victim had positively identified arrestee as her attacker was, false, and its inclusion in application amounted to, at least, recklessness; (2) Warrant application was invalid based on officers’’ reckless inclusion of a material false statement; (3) Officers lack of probable cause to make arrest independent of invalid arrest warrant; (4) Legal process instituted against arrestee, and his resulting pretrial detention, were unsupported by probable cause.” See: U. S. v. Crews, 445 U.S. 463 (1980),“For purposes of determining whether a Fourth Amendment violation requires exclusion of a victim’s in-court identification of the accused, identification has three distinctive elements, first, the victim is present at trial to testify as to what transpired between her and offender, and to identify defendant as the culprit; second, the victim possesses knowledge of and ability to reconstruct prior criminal occurrence and identity defendant from her observations at the time of the crime; and third, defendant is also physically present in the courtroom so that the victim can observe him and compare his appearance to that of the offender.” See also: U. S. v. Ceccolini, 435 U.S. 268 (1978), “Court would reject Government’s suggestion to adopt per se rule that live witnesses should not be excluded at trial no matter how close and proximate the connection between it and a violation of The Fourth Amendment.” Wong Sun v. U.S., 371 U.S. 471 (1963), “Even though informant had been under police surveillance and heroin was found in his possession upon his arrest, information that he had bought heroin from “Blackie Toy,” identified only as proprietor of laundry on specified street, constituted insufficient cause for arrest of defendant who answered doorbell at “Oyes Laundry” on specified street. Information to vague and from too untested a source to permit judicial officer to accept it as probable cause for arrest warrant is insufficient information upon which to base arrest without warrant. Verbal evidence which derives immediately from unlawful entry and unauthorized arrest is not less the “fruit” of official illegality than more common tangible fruits of unwarranted intrusion, and Fourth Amendment may protect against overhearing of verbal statements as well as against more traditional seizure of papers and effects.” Davis v. Mississippi, 394 U.S. 721 (1969); Brown v. Illinois, 422 U.S. 590 (1975).

  For these reasons, according to clearly established United States Supreme Court Law, the testimonies of Naomi Alston, Jerilether Jones, Douglas Morris, Maurice Giles, Willie Stanley, Investigator Garrett and Investigator Dustin Morris testimonies pursuant to any in-court or out-of-court identification of Petitioner should have been suppressed on the grounds that they were obtained as a result of “fruit of the poisonous tree” pursuant to Investigator Garrett’s botched investigations which lead to Petitioner's unlawful seizure pursuant to the deficient arrest warrant and “false declarations” made to the magistrate to obtain his arrest warrant.

 See: Testimonies of state witnesses, trial of 2014, that should have been suppressed , Naomi Alston Tr. P. 105 – 116; 175 – 234; Jerilether Jones, Tr. P. 245 – 263; Douglas Morris, Tr. P. 124 – 130; 264 – 285; Maurice Giles, Tr. P. 189 – 103; 288 – 297; Willie Stanley, Tr. P. 75 – 86; 312 – 355; Investigator Melvin Garrett, Tr. P. 538 – 566; Investigator Dustin Morris, Tr. P. 582 – 626.

 Petitioner contends trial counsel's failure to investigate the veracity of his arrest warrant and raise meritorious Fourth Amendment claim and make a suppression motion to exclude any in-court or out-of-court identifications of Petitioner as being "D" or "Little D," proves that his representation was incompetent and fell below the standard of professional norms, whereas, the state's entire case rested on Investigator Garrett's botched investigation pursuant to Petitioner's invalid arrest warrant and false declarations made to obtain the arrest warrant.

          Had trial counsel investigated his arrest warrant and made a timely motion to suppress testimonial evidence from state's witness as to falsely identifying Petitioner by the nicknames "D," and "Little D," which so happen to be the same nicknames allegedly mentioned by victim as to who shot him pursuant to the alleged hearsay statement, but for counse's unprofessional errors, it is a reasonable probability that the evidence would have been suppressed, and the the result of Petitioner's trial would have been different.

             Petitioner contends that accordiing to clearly established U.S. Supreme Court law, he is entitled to a hearing to determine whether he was prejudiced by trial counsel's failure to make timely suppression motion. Kimmelman v. Morrison, 477 U.S. 365 (1986), "Although it is frequently involved in criminal trials, the Fourth Amendment is not a trial right." However. "The right to counsel is a fundamental right of criminal defendants; it assures the fairness, and legitimacy, of our adversary process. E.g., Gideon v. Wainwright, 372 U.S. 335, 334 (1963). The essence of an ineffective assistance claim is that counsel's unprofessional errors so upset the adversarial balance between the defense and prosecution that the trial was rendered unfair and the verdict rendered supect. See, e.g., Strickland v. Washington, 466 U.S., at 686, 194 S. Ct. 2039, 2044-2046; United States v. Cronic, 466 U.S. 648, 655-657 (1984). In order to prevail, the defendant must show both that counesl's representation fell below an objective standard of reasonableness, Strickland, 466 U.S., at 688, 104 S.Ct., at 2064, and that there exist a reasonable probability that, but for counsel's unprofessional errors, the result of proceeding would have been different. I'd., at 694, 104 S.Ct., at 2068. Where defense counsel's failure to litigate a Fourth Amendment claim competently is the principle allegation of ineffectiveness, the defendant must also prove that the Fourth Amendment claim is meritorious and there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice."

          For the foregoing reason Petitioner's conviction should be set aside.

GROUND 6

                ACTUAL INNOCENCE

         Trial court erred by denying Petitioner’s directed verdict motion, because the state failed to introduce substantial evidence that Petitioner was guilty of murder. Petitioner contends that he is innocent of the crime of murder in which he is charged.

                                                             Supporting Facts

          Trial court denied Petitioner’s directed verdict motion, although, at no time throughout the course of Petitioner's trial, was he ever identified by anyone as the person who committed the murder of Aundry Evans, Jr. There was no forensics, DNA, weapons, or any eyewitnesses that placed Petitioner at the scene of the crime or in Georgetown County at the time that the crime occurred. Petitioner also presented alibi witnesses who gave an account for his whereabouts during the entire time in which the crime occurred such that it would be physically impossible for the petitioner to have committed the crime.

           Petitioner contends that he was acquitted of these charges in his first trial of 2012, by receiving a judgment of “acquittal” from the Honorable Judge Baxley, who discharged his jury on the grounds that “the prosecution they are unable to meet “the burden of proof” to the extent that they could bring back a unanimous verdict.” According to clearly established United State Supreme Court law, such a ruling was a “judgment of acquittal” which established Petitioner's lack of criminal culpability and his "innocence." (See: Grounds 1-3, also: Burks v. United States, 437 U.S. 1 (1978); U.S. v. Scott, 437 U.S. 82 (1978).

Alibi, Actual Innocence, Renewed Directed Verdict

See: Tr. P. 661 – P. 690, Alibi witnesses, LaQuesha Felder, Daniel Robinson, Leon Dizzley.

See: Tr. P. 690, L 24 – P. 691, L1 – 6.

 Petitioner contends that throughout the entire time that the crime occurred, his alibi witnesses gave an account for his whereabouts that makes it impossible for Petitioner to have committed the crime for which he is charged.

 Alibi – Blacks Law Dictionary – “ a defense based on the physical impossibility of a defendant’s guilt by placing the defendant in a location other than the scene of the crime at the relevant time. The quality, state, or condition of having been elsewhere when an offense was committed.”

 See: Charge on The Law to the jury on defense of alibi. Trial of 2012, transcript pages 741, Line 23 – P. 742, Lines 1–10. Citing from Page 742, L. 9–10. “The state has the burden to disprove the alibi defense.”

 Petitioner contends that the prosecution failed to disprove his alibi defense, which is that Petitioner was in Orangeburg, S.C., where Petitioner lived at that time that the crime occurred, which was in Georgetown, S.C., which is three hours away, which was established by his alibi witnesses. See: Patterson v. New York, 432 U.S. 197 (1970), “A state must prove every ingredient of an offense beyond a reasonable doubt and may not shift the burden of proof to the defendant by presuming an ingredient upon proof of the other elements of the offense.” Mullaney v. Wilbur, 421 U.S. 684 (1975), “Protection of Due Process Clause against conviction except upon proof beyond a reasonable doubt is not limited to those facts which if not proved, would wholly exonerate the defendant.” Burks v. U.S., 437 U.S. 1 (1978), “Once Court of Appeals determined that Government had failed to rebut Petitioner’s proof as to insanity, the resolution of factual issues, double jeopardy clause prohibited a second trial.” See: In re Winship, 397 U.S. 358 (1970); Schlup v. Delo, 513 U.S. 331 (1995), “Sworn statements of two people that cast doubt on whether Petitioner could have participated in the murder in light of his whereabouts around the time of the crime which support the Petitioners actual innocence claim if found to be reliable.” House v. Bell, 547 U. S. 518 (2006).

          Petitioner contends that the state’s entire case rested solely on identification which revolved around an “alleged” hearsay statement involving vague nicknames, “D or "Little D shot me,” allegedly made by victim. According to the alleged witnesses, victim never established to them who he was referring to in reference to these nicknames, no physical descriptions, whether this individual was black, white, Hispanic, female or male, etc. Witnesses testified that the shooter wore a mask and hoodie and that they could not identify the shooter.

          Petitioner contends that police officers testified that they questioned victim several times and they asked him did he know who shot him and the victim did not provide them with any information. See (Lt. Michael Nelson) Tr.p, 482, L13-P, 483, L1-1-4; (Officer Jarred Brandon) Tr.p. 463, L18-20.

         Petitioner contends that both Gary Gibson and Jamison Wright testified that the shooter was taller than Petitioner, therefore, making it impossible to have been Petitioner. Gibson: The record shows that Gibson gave the statements on August 20, 2012, to investigators that the shooter was too tall to have been Petitioner. Petitioner also stood up in court, as requested by trial counsel during cross examination of Gibson, and Gibson testified that the shooter, he witnessed enter the club, was taller than Petitioner. Thus, his trial testimony corroborated his statement given to investigators on August 20, 2012. Gibson also testified that the shooter walked with a limp: See Tr.p. 405. L5-P. 408. L1-19. Gibson also testified that he could not tell if the shooter was white, “black, Puerto Rican, or Indians.” Tr.p. 404, L17-24.

 Jamison Wright: See Tr.p. 418, L 8-11; in reference to shooter:

Q: Okay. What happened next? Anybody get out of the car?

A: Yeah.

Q: Who got out of the car?

A: A tall fellow.

 Petitioner contends that these physical descriptions of the shooter by Gibson and Wright makes it impossible to have been Petitioner who committed the crime.

Larry Cooper: Cooper testified that he could not tell if the shooter was male or female, because the shooter was wearing a mask. Tr.p. 360, L. 5-18.

 Petitioner contends that Larry Cooper and Gary Gibson testified that they never heard the victim or anyone mention the nickname “Little D” the night of the shooting or heard anyone mention anything as to who they believed shot victim. See Tr.p. 367, L14-12 also Tr.p. 409, L25-P. 410, L1.

            Petitioner contends that the solicitor admitted, in her closing arguments, that the state failed to prove the identity of the shooter beyond a reasonable doubt, that the shooter was Petitioner. See Tr.p. 722, L2-12.

“Do spent bullets prove that Terron Dizzley committed this murder? Absolutely not, and if all I had to show you was some spent bullets, and some ballistics without no gun, I would understand if you return a not guilty, but that's not all. Folks, this physical evidence corroborates witness testimony, corroborates what they have to say. The physical evidence is consistent with ‘someone’ who came in the bar, who ran straight up to Mr. Evans, who's standing by the pool table by all accounts and pulled the trigger somewhere between three and five times.” See Tr.p. 722, L2-12.

          Petitioner contends that this statement alone by the solicitor proves that the state failed to prove beyond a reasonable doubt that Petitioner was this “someone” who committed the crime. Petitioner contends that the state presented witnesses to testify as to who they “believed” victim was talking about in reference to the alleged hearsay statement pursuant to the nicknames allegedly mentioned “D” or “Little D,” which was pure speculation. Galloway v. U.S, 319 U.S 372 (1943). “The Constitutional amendment relating to jury trial does not deprive federal court of power to direct verdict for insufficiency of evidence. The essential requirement in determining whether evidence is sufficient for jury is that mere speculation be not allowed to do duty for probative facts, after making due allowance for all reasonably possible inferences favoring party whose case is attacked, and mere difference in labels used to describe this method, whether applied under demure to evidence or motion of directed verdict, cannot constitute departure from the rules of common law required to be followed by constitutional amendments relating to jury trial.” Pennsylvania R. Co. v. Chamberlin, 288 U.S 333 (1933). “Verdict may not be permitted to rest on mere speculation and conjecture. Jury's verdict cannot be predicated on conjecture, surmise or speculation.” U.S v. Martin Linen Supply Co., 430 U.S 564 (1977); Gunning v. Cooley, 281 U.S. 90 (1930), “Court should direct verdict where evidence with all inferences justifiably deductible there from, does not constitute sufficient basis for verdict for party producing it.” Evans v. Michigan, 568 U.S. 313 (2013). See motion for directed verdict, Tr.p. 654, L8-P 655, L1-17.

         Petitioner contends that trial judge’s reasons for denying directed verdict, based on the solicitor’s arguments, were clearly contrary to federal law supported by the United States Supreme Court. See Tr.p. 655, L8-10 “There are two people who have picked Mr. Dizzley out of a lineup as being “the one” that the victim called ‘Little D’, ‘D’, or ‘Diz.” The solicitor's entire case and the judge’s ruling denying directed verdict rested solely on the hearsay statement allegedly made by the victim that “D” or “Little D shot me.” (Note: The solicitor added the nickname “Diz,” which was never a nickname allegedly mentioned by the victim pursuant to the alleged hearsay statement) and presentation of such highly prejudicial testimony and evidence, such as witnesses who did not witness the crime, who allegedly picked Petitioner out of a photo-lineup as who they say victim called by nickname “D” or “Little D,” not as the shooter. The solicitor then misleading use this evidence to “speculate” to the jury that the victim was referring to the Petitioner, which is unsupported by the record.

           Petitioner contends that after viewing evidence in light most favorable to prosecution, any rational trier of fact could have found the essential element of the crime beyond a reasonable doubt was not proven by the prosecution in his case.

          Therefore, trial judge erred by denying Petitioner’s directed verdict motion, and Petitioner was unconstitutionality convicted of a crime he is innocent of. See: Jackson v. Virginia, 443 U.S. 307 (1979), “Due process requires that no person be made to suffer the onus of a criminal conviction except upon sufficient proof, defined as evidence necessary to convince a trier of fact beyond reasonable doubt of the existence of every element of the offense.”

            For the foregoing reasons Petitioner's conviction must be vacated.

GROUND 7

DIRECT APPEAL

INEFFECTIVE ASSISTANCE OF APPELLANT COUNSEL, ABANDONMENT AT A CRITICAL STAGE, DENIAL OF DUE PROCESS

Petitioner was denied Sixth Amendment Right to Counsel and Fourteenth Amendment Right to Due Process and equal protection of laws under the United States Constitution when Appellate Counsel withdrew Petitioner’s direct appeal, as a right, without fully investigating his case as to the merits, without an Anders Brief, and without advising him of the dangers of withdrawing his direct appeal, and the South Carolina Court of Appeals accepting appellant counsel’s withdrawal of Petitioner’s direct appeal without filing an Anders Brief, and without conducting their own judicial determination of appeal merit pursuant to appellant counsel’s request to withdraw, was contrary to clearly established federal law as determined by the United States Supreme Court.

                    Supporting Facts

After Petitioner was unlawfully convicted pursuant to the second trial of March 31, 2014, Petitioner’s trial counsel timely filed a Notice of Appeal, and he was appointed Susan B. Hacket on direct appeal. On April 16, 2015, Petitioner hired attorney Jeremy A. Thompson to investigate “juror misconduct” and file a motion for new trial. Attorney Thompson then mislead Petitioner, stating that he had to substitute himself as Petitioner's appellate counsel in order to investigate his jurors and withdrew Petitioner’s direct appeal without obtaining any transcripts, without fully investigating Petitioner’s case, or advising him of the merits of his appeal, or dangers of withdrawing his direct appeal as of right, and without filing an Anders Brief. Attorney Thompson filed the request to withdraw Petitioner’s direct appeal as of right on July 9, 2015 and the South Carolina Court of Appeals granted the request to withdraw direct appeal on July 16, 2015 without an Anders Brief or an independent judicial determination of appeal merit. Attorney Thompson then filed a PCR, in which Petitioner paid Attorney Thompson a total of $15,000. Attorney Thompson then abandoned Petitioner’s PCR. Petitioner has been diligently fighting for nine years and counting to have his direct appeal reinstated as of right.

Petitioner contends that the withdrawal of his direct appeal under such circumstances violated his Sixth Amendment Right to Counsel and 14th Amendment Right to Due Process. Penson v. Ohio, 488 U.S. 75 (1988), “The court ruled that it was error for Penson’s attorney to file a certificate of his view of the appeal as meritless and withdrawing as Penson’s counsel without filing an Anders Brief and it was error for the Appellate Court to accept Penson’s attorney’s certificate that he viewed the appeal as meritless and allowing counsel to withdraw without an Anders Brief or making its own determination whether Penson’s attorney’s evaluation of the case was sound. This requirement was plainly stated in Ellis v. U. S., 356 U.S. 674 (1958); it was repeated in Anders v. California, 386, U.S. 738 (1967); and it was reiterated last term in McCoy v Court of Appeals of Wisconsin, 486 U.S. 429 (1988). The courts held that Penson was left completely without representation during the appellate court’s actual decisional process. The court analogized its ruling in this case to its holdings in critical stage cases where counsel was absent at trial. (Citing U.S v. Cronic, 466 U.S. 659 (1984).

The courts held that neither Strickland v. Washington, 466 U.S. 668 (1984), prejudicial review nor the harmless error analysis of Chapman v. California, 386 U.S. 18 (1967) was appropriate, prejudice was to be assumed. Anders v. California, 386 U.S. 738 (1967). Douglas v. California, 372 U.S. 353 (1963); Evitts v. Lucey, 469 U.S. 387 (1985) “the Supreme Court, Justice Brennan, held that criminal defendant is entitled to effective assistance of counsel on first appeal as of right.”

These errors not only violate Petitioner’s right to due process, but also amount to a fundamental defect which inherently results in a complete miscarriage of justice and is inconsistent with rudimentary demands of fair procedure. Reed v. Farley, 512 U.S. 339 (1994).

When a state court allows appellate counsel to withdraw direct appeal as of right without independent judicial determination of appeal merit the defendant is entitled to a fresh appeal without demonstrating that the initial appeal was non-frivolous. Penson v. Ohio, 488 U.S. 75 (1988).

Petitioner contends that the United States District Court of South Carolina’s order that he had to exhaust State remedies before filing a Habeas Corpus to re-instate his direct appeal, as of right, pursuant to Dizzley v. Cartledge, 2017 WL 92886979 as contrary to clearly established federal law as determined by the U. S. Supreme Court.

When counsel has been denied or has failed to render any assistance on appeal, the Supreme Court of the United States has consistently required a new appeal. Johnson v. Zerbst, 304 U.S. 458 (1938), “One convicted and sentenced without assistance of counsel and who was ignorant of his right to counsel and ignorant of the proceedings to obtain a new trial or appeal and the time limits governing both, and who did not possess the requisite skill or knowledge properly to conduct an appeal, is entitled to relief by Habeas Corpus." (Petitioner)... "he said that it was-as a practical matter-impossible for him‘s to obtain relief by appeal. If these contentions be true, in fact, it necessarily follows that no legal procedural remedy is available to grant relief for a violation of constitutional rights, unless the courts protect Petitioner rights by habeas corpus of the contention that the law, provides no effective remedy for such a deprivation rights affecting life and liberty it may well be said-as in Mooney v. Holohan, 294 U. S. 103 (1935) – that it “falls within the premise” To deprive a citizen of his only effective remedy would not only be contrary to the “rudimentary demands of justice,” but destructive of a constitutional guarantee specifically designed to prevent injustice.” Evitts v. Lucey, Supra, 469 U.S. 387 (1985). Douglas, 372 U.S. at 353; Swenson v. Bosler, 386 U.S. 258 (1967); Anders v. California, 386 US 738 (1967).

             Petitioner contends that The U.S. District Court of South Carolina’s dismissal of his second habeas corpus without prejudice, for alleged failure to exhaust state remedies pursuant to Terron Dizzley v. Warden Stephon, C/A No. 8:20-CV-00126-SAL, where he also raised the issue to re-instate his direct appeal was contrary to clearly established federal law as determined by The Supreme Court of the United States.

Relief Requested Pursuant to Reinstatement of Direct Appeal

The Petitioner requests that this Court issues a Conditional Writ to the S.C. Court of Appeals to reinstate his direct appeal to protect Petitioner’s rights from any further inordinate delay. Petitioner requests that this Court issues a Conditional Writ that his direct appeal is decided within a reasonable amount of time or release him from prison. See: Bostick v. Warden of Broad River Corrections, 2010 WL 360514, “This matter is on remand from the United States Court of Appeals for the Fourth Circuit. On December 17, 2009, The Fourth Circuit reversed this court’s prior decision denying the petition for writ of habeas corpus and remanded this case with instructions to grant Mr. Bostick writ of habeas corpus and order him released from prison unless The State of South Carolina grants him a direct appeal within a reasonable time. See: Bostick v Stevenson, No. 8-3661 (4th Cir. Dec. 17th , 2009). Accordingly, pursuant to The Fourth Circuit’s decision, and its mandate filed January 25, 2010, this court’s orders that the writ of habeas corpus is granted. The State of South Carolina shall grant Mr. Bostick a direct appeal no later than May 1, 2010, or he shall be released from prison pursuant to The Fourth Circuit’s mandate.” Brooks v. Jones, 875 F. 2d 30 (2nd Cir. 1989), “Federal habeas corpus petitioner was entitled to relief in form of order for release conditional on his appeal not being heard within 60 days in state court due to his having waited eight years for state court to consider his appeal.” Cameron v. LeFevre, 887 F. Supp.425 (1995), “Prisoner filed petition for writ of habeas corpus, alleging that the state court's delays in furnishing him transcripts of his trial that he needed for perfection of his appeal violated his rights to due process. The District Court, Seybert, J., held that: (1) delay violated prisoner's rights but (2) delay warranted only a conditional writ that prisoner be released if appeal was not heard in reasonable time.” See: Bartone v. United States, 375 U.S. 52 (1963), “Where state procedural snarls or obstacles preclude an effective remedy against unconstitutional convictions, federal courts have no choice but to grant relief in a collateral proceeding.” Grandberry v. Greer, 481 U.S. 129 (1987), "Failure to exhaust state remedies does not deprive appellate court of jurisdiction to consider merits of habeas corpus application, court should determine whether interests of comity and federalism will be better served by addressing merits forwith or by requiring series of additional state and district court proceedings before reviewing the merits of the claim.” See: November 28, 2018, PCR transcript pages 138, L 13-P. 146- P.152, L1-11.

Petitioner contends that for the foregoing reasons, in the interest of liberty and justice, Petitioner’s direct appeal should be reinstated pursuant to request for conditional writ.

Ground 8

The South Carolina’s State Court’s decision to conspire with Attorneys Leah B. Moody and Eleanor D. Cleary to commit fraud by obtaining illegal representation of Petitioner’s PCR, and forcing their illegal representation on him and making rulings on Petitioner’s PCR pursuant to the representation of illegal counsel as the law of his case, and attempting to force Petitioner to appeal the judgment of his PCR pursuant to the work of illegal representation, was contrary to clearly established federal law as determined by the U.S. Supreme Court, and deprived Petitioner of his Sixth and Fourteenth Amendment Right to “Counsel of Choice”, which left Petitioner without counsel during his PCR, and impeded Petitioner from raising any issues pursuant to his PCR. Therefore, The PCR Court and The South Carolina Supreme Court lacked jurisdiction of Petitioner’s PCR. Therefore, according to clearly established United States Supreme Court law, Petitioner is entitled to raise his issues in a federal habeas corpus without being subjected to any procedural defaults.

Supporting Facts

Petitioner contends that the record shows that Attorney Jeremy A. Thompson withdrew his direct appeal without filing an Anders Brief and filed a PCR charging Petitioner $15,000. Attorney Thompson then abandoned Petitioner’s PCR without obtaining any discovery and first trial transcripts upon request.

Petitioner was then “appointed” Attorney James K. Falk, who refused to obtain discovery and first trial transcripts upon request and refused to communicate with Petitioner as to the objectives of Petitioner's case. Griffin v. Illinois, 351 U.S. 12 (1956), “Defendants, who had been convicted of armed robbery, and whose motion to have copy of record including transcript furnished them without cost on ground of their poverty had been denied, filed petition. The Illinois Supreme Court affirmed dismissal of this petition and defendants brought certiorari. The Supreme Court held that dismissal of the petition was error. Vacated and remanded.” Draper v. State of Washington, 372 U.S. 487 (1963); Coppedge v. U.S, 369 U.S. 438 (1962). Cameron v. LeFevre, supra, 887 F. Supp.425 (1995).

Petitioner contends that he addressed these issues through a Motion to Relieve Attorney Falk and several Motions to Obtain Discovery to no avail. Petitioner also addressed these issues at his first PCR hearing on February 10, 2017, to the Honorable Judge Michael G. Nettles. (See transcripts of February 10, 2017 PCR hearing attached). Judge Nettles granted Petitioner a continuance to obtain discovery and denied Petitioner’s Motion to Relieve Attorney Falk and proceed pro se, however, Petitioner never obtained the complete a complete case file on discovery. Therefore, The Honorable Judge Nettles violated Petitioner's Six Amendment right to “self-representation,” which would have prevented Petitioner from being prejudiced by future fraudulent representation and would have allowed Petitioner to raise his own issues, obtain discovery through his own motions, and fully and fairly exhibit his case. Faretta v. California, 422 U.S. 808 (1975); McKaskle v.Wiggins, 465 U.S. 168 (1984).

Fraud Upon the Court

The record proves that in October of 2017 and August of 2018, the Courts conspired

with Leah B. Moody and Eleanor Cleary in swindling Petitioner's mother out of $6,500.00 paid to Leah B. Moody and $10,000.00 paid to Eleanor Cleary. Both attorneys obtained fraudulent representation of Petitioner's PCR without his knowledge or informed consent in writing by contacting judges and the Attorney General by "telephone," one of which was Judge William H. Seals and Attorney General Johnny James, and, unlawfully, had themselves substituted as Petitioner's Counsel. (See attached exhibits). Therefore, forcing fraudulent representation on Petitioner, allowing and participating in Attorney Cleary sabotaging Petitioner’s PCR.

Petitioner contends that these judges did not have jurisdiction nor legal authority to substitute Eleanor Cleary nor Leah B. Moody as his counsel. Whereas, these substitutions were authorized by “telephone,” where there was never a motion filed with the courts or petition for substitution of counsel placed before Judge Seals which would sufficiently make the substitution of counsel “a case” that would warrant Judge Seals or any judge jurisdiction to authorize substitution of counsel. Stump v. Sparkman, 435 U.S 349 (1978); Dennis v. Sparks,449 U.S. 24 (1980); In re: Murchison, 349 U.S.133 (1955); Carlisle v. U.S., 517 U.S. 416 (1996), “District court had no authority to enter post-verdict judgment of acquittal for drug conspiracy where defendants motion for judgment of acquittal was untimely.”

Petitioner contends that PCR Judge, Judge Curtis, did not have jurisdiction to affirm Judge Seals’ illegal substitution of Eleanor Cleary and force fraudulent representation on him, and did not have jurisdiction to rule on any briefs submitted by Eleanor Cleary or Attorney General Johnny James in response to any briefs by Eleanor Cleary. As a result of Eleanor Cleary’s illegal representation, Petitioner was impeded from raising any issues during his PCR and also resulted in Petitioner being without counsel during his PCR. Therefore, the jurisdiction of the PCR court was lost, therefore, any ruling by Judge Curtis was void pursuant to Petitioner’s PCR. See: Johnson v. Zerbst, 304 U.S. 458 (1938); “If the accused is not represented by counsel and has not competently and intelligently waived his constitutional right, the jurisdiction of the court is lost, the judgment of conviction pronounced by the court is void, and release from imprisonment may be obtained by habeas corpus.” Massey v. Moore, 348 U. S. 105 (1954), “The Supreme Court held that the prisoner had not had any hearing on the issue whether he had been insane at the time of trial except a hearing before the Federal District Court at a time when that court erroneously believed the prisoner had been represented by counsel at the time of trial the prisoner had not had the hearing to which he was entitled.”

Petitioner contends that the S.C. Supreme Court, who was aware of these fraudulent acts, had no jurisdiction to except a notice of appeal from Eleanor Cleary whom the S.C. Supreme Court knew was not legally Petitioner’s lawyer, and to force Attorney Cleary’s fraudulent representation and her fraudulent body of work on him as the law of his case, and attempt to force Petitioner to appeal issues he did not raise or give consent to raise.

The S.C. State Courts participation in illegally authorizing Leah B. Moody and Eleanor D. Cleary’s illegal representations, forcing their illegal representations on Petitioner, refusing to relieve them of their illegal representations, and refusing to compel them to return the money, at a total of $16,500, illegally obtained, which was meant for Petitioner’s “counsel of choice,” pursuant to countless motions filed. According to clearly established federal law, as determined by the U.S. Supreme Court, constitutes an unconstitutional restraint on Petitioner’s assets, which violates his Sixth and Fourteenth Amendment Right to “counsel of choice” which forced Petitioner to represent himself throughout eight years of appealing his unlawful conviction. See: Louis v. U. S., 136 S. Ct. 1083 (2016), “ The Supreme Court, Justice Breyer, held that pretrial restraints on defendant’s legitimate assets needed to obtain counsel of choice violates the Sixth Amendment. The Sixth Amendment Right to Counsel grants a defendant “ a fair opportunity to secure counsel of his own choice, Powell v. Alabama, 287 U. S. 45, 53 (1932), that he “can afford to hire”, Caplin & Drysdal Chartered v. United States, 491 U .S. 617 (1989). “The Court has consistently referred to the right to counsel of choice as “fundamental”. “The right to select counsel of choice” is just, “the root of meaning” of the Sixth Amendment Right to Counsel. U.S. v. Gonzalez-Lopez, 548 U.S. 140, 147 - 148 (2006).”

 In Wainwright v. Torna, 45 U.S. 586 (1982), it was suggested that in proceedings as to which there is no right to appointed counsel, the defendant may have a Constitutionally protected interest in being represented by retained counsel and the state, therefore, cannot preclude such representation absent a compelling justification.

Petitioner contends that he also had a constitutional right to be "conflict free” as to choice of “retained” counsel and not have fraudulent representation forced upon him. Wood v. Georgia, 400 U.S. 261 (1981); Mickens v. Taylor, 535 U.S. 162 (2002); Cuyler v. Sullivan, 446 U.S.335 (1980); Holloway v. Arkansas, 435 U.S. 475 (1978); Bonin v. California, 494 U.S. 1039 (1990).

Petitioner contends that on April 13, 2020, he filed a Rule 60 (b) Motion to Set Aside Judgment of his PCR due to “Fraud Upon the Court,” and the Clerk of Court of Georgetown County refused to file Petitioner’s motion, thus participating in the state’s fraudulent acts. Clerk of Court Alma Y. White of Georgetown, S.C. has been depriving Petitioner of accessing the courts for nine years and counting.

Petitioner contends that appealing the judgment of his PCR as to issues briefed and raised by Eleanor Cleary, as the law of his case, would force Petitioner to participate in the illegal and fraudulent acts of Eleanor Cleary and the State Courts, therefore, sabotaging his own case and placing him at default from raising his issues in federal court.

On December 9, 2019, Eleanor Cleary admitted to her fraudulent acts of obtaining illegal representation, that the court was in error for forcing her to continue to represent Petitioner, under such circumstances, and that these errors impeded Petitioner from raising his “strong and meritorious” PCR issues, when she filed a Rule 59 (e) Motion for Reconsideration of the Denial of Post-Conviction Relief. See: Page 5, paragraph 7 which states:

“Finally, Counsel asked this court to address the motion to be relieved in a separate order so that she would not be forced to argue it in conjunction with the strong and meritorious post-conviction relief claims that Applicant has.” However, this Court declined to do so. Counsel must, therefore, reiterate that because Applicant is currently suing counsel in Richland County Court of Common Pleas for monetary damages, for which counsel has had to retain counsel to represent her, and which is ongoing, she has a conflict of interest. This Court mistakenly asserts that only a “little more action” is required of counsel, and this is simply incorrect, as reviewing the voluminous record and lengthy motions and orders in this case is not a “little action” under any definition. It is an error to allow counsel to remain as Applicant’s counsel, against his wishes and when he retained her, under these circumstances.”

  U. S. v. Throckmorton, 98 U.S. 61 (1878), “Where unsuccessful party has been prevented from fully exhibiting his case, by fraud or deception, as by keeping him away from court, a false promise of compromise, or keeping him in ignorance of the suit; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where attorney regularly employed corruptly sells out his client’s interest; and in similar cases where there has never been a real contest, new suit may be maintained to set aside and annul judgment or decree.”

Petitioner contends that he has demonstrated corruption and fraud upon the court involving lawyers he has retained, court appointed lawyers, judges, The Attorney General, and lawyers illegally substituted as Petitioner’s counsel, without his consent, after swindling his mother out of substantial amounts of money meant for Petitioner to obtain counsel of choice. Petitioner has demonstrated that these government officials and lawyers have intentionally impeded Petitioner from exhausting any state remedies in the Appellate Court, Court of Common Pleas, and The S.C. Supreme Court. Due to these extraordinary circumstances Petitioner’s due process rights have been gravely violated and he should not be required to exhaust state remedies which the state intentionally failed to make available to him after nine years. See: Murray v. Carrier, 477 U.S. 478 (1986), “Existence of cause for procedural default must ordinarily turn on whether prisoner can show that some objective factor external to the defense impeded counsel‘s efforts to comply with state’s procedural rule. Showing that actual or legal basis for the claim was not reasonably available to counsel, or that some interference by officials made compliance with state’s procedural rule impracticable, would constitute cause for procedural default. In extraordinary case, where constitutional violation has probably resulted in conviction of one who is actually innocent, federal habeas court may grant writ even absence of showing cause for procedural default.” Maples v. Thomas, 565 U. S. 266 (2012), “For purposes of determining whether a habeas Petitioner has procedurally defaulted a claim, under agency principles, the client cannot be charged with acts or omissions of an attorney who has abandoned him, and neither can a client be faulted for failing to act on his own behalf when he lacks reason to believe his attorneys of record, in fact, are not representing him.” Ex Parte Hawk, supra 321 U.S. 114 (1944); Amadeo v. Zant, 486 U.S. 214 (1988).

 Petitioner contends that he has clearly demonstrated that: (1)The merits of the factual dispute were not resolved in state hearing; (2) State factual determination is not fairly supported by record as a whole; (3) Fact finding procedure in state court was not adequate to afford full and fair hearing; (4) There is substantial allegations of newly discovered evidence; (5) Material facts were not adequately developed at state court hearing; and (6) For any reason it appears that state trier of facts did not afford applicant full and fact hearing. See: Townsend v Sain, 83 S. Ct. 745 (1963).

Therefore, Petitioner respectfully requests that this Court grants this Petition for Evidentiary Hearing.

Relief Requested Pursuant to PCR

Petitioner requests that this Court issues a conditional writ that this Court adjudicates the merits of his PCR issues. To protect Petitioner’s right from any further delay, Petitioner requests that this Court issues in its conditional order that this Court decides his "PCR" issues within 60 days or release him from prison. Brooks v. Jones, supra, 875, F. 2d 30 (2nd Cir. 1989); Cameron v. LeFevre, supra, 887 F. Supp. 425 (1995); Bartone v. United States, supra, 375 U. S. 52 (1963); Grandberry v Greer, supra, 481 U.S. 129 (1987); Barker v. Wingo, supra, 407 U.S. 514 (1972). Therefore, this Court must enforce the Speedy Trial policy under the All Writs Act, 28 U.S.C.A. 1651, because habeas corpus helps assure that the determination of Petitioner’s guilt was full and fair; delays in processing petition that are not justified by a need for adequate investigation or preparation, interfere with the policy underlying the constitutional guarantee of a speedy trial.

GROUND 9

Trial counsel was ineffective in which prejudice Petitioner by failing to call “alibi” witness, Stephon Jamison, to testify in his second trial of 2014, who testified in his first trial of 2012.

                   Supporting Facts

          Trial counsel subpoena Stephon Jamison to Petitioner's second trial, and Jamison was present, ready and willing to testify. However, despite several arguments requesting trial counsel to call Jamison to the stand by Petitioner and his family, trial counsel refused to call Jamison to the stand. Petitioner contends that Jamison was also subpoena to testify in his PCR before Attorney Eleanor Duffy Cleary ever obtained fraudulent representation and was present and willing to testify at his November 28, 2018 PCR hearing. However, due to Attorney Eleanor Cleary’s fraudulent representation, Jamison was not called to the stand to testify in Petitioner's PCR hearing, despite several requests to Judge Curtis at the PCR hearing by Petitioner. See: Motion for Reconsideration 59(e), Page 5, Paragraph 7, and PCR Transcript.

Memorandum of Law

See: Affidavit from Stephon Jamison and transcript of first trial of 2012 testimony of Stephen Jamison.

 Petitioner contends that Stephon Jamison gave an account of his whereabouts which proves that it was impossible for Petitioner to have committed the crime in which he was charged. Jamison testified that he had last seen Petitioner or December 1, 2008 in Orangeburg, S.C. when Petitioner left his house at 9:30 p.m.

 Petitioner’s arrest warrant indicates that the crime allegedly occurred at 10:30 p.m. in Georgetown County, S.C. which is 3 hours away. It would have been physically impossible for Petitioner to drive from Orangeburg, S.C. to Georgetown, S.C. in one hour. Jamison's testimony also corroborates with Petitioner’s other alibi witnesses, LaQuesha Felder, who Petitioner lived with in Orangeburg, S.C. and Daniel Robinson and Devon Dizzley.

 Petitioner contends that trial counsel's failure to call alibi witness, Stephon Jamison, resulted in representation that fell below the objective standard of reasonableness, and but for counsel's unprofessional errors, the result of Petitioners trial would have been different. Strickland v. Washington, 466 U.S. 668, 668, 694 (1984).

 Stephon Jamison’s testimony further supports his issue of actual innocence. Schlup v. Delo, 513 U.S. 331 (1995), “Noting that the sworn statements of two people that casted doubt on whether Petitioner could have participated in the murder in light of his whereabouts around the time of the crime would support the Petitioner’s actual innocence claim if found to be reliable.” House v. Bell, 547 U. S. 518 (2006), Herrera v. Collins, 506 U.S. 390 (1993). See: Transcript of 2021 Trial, testimony of Stephon Jamison, Pages 49 – 56. California v. Green, 399 U.S. 149 (1970), “Where a defendant represented by counsel had opportunity to cross-examine trial witness at preliminary hearing, witness’ is preliminary hearing statements were admissible at trial even if witness was not present.”

 Petitioner contends that although Stephon Jamison did not testify at his PCR because of the fraudulent representation of Eleanor Cleary and Judge Curtis, who deliberately deprived Petitioner from presenting his alibi witness upon several requests. According to clear established federal law as determined by U.S. Supreme Court, Stephon Jamison’s testimony in Petitioner’s trial of 2012, along with his affidavit is admissible to support this issue.

GROUND 10

AFTER-DISCOVERED EVIDENCE, PROSECUTORIAL MISCONDUCT, INEFFECTIVE ASSISTANCE OF COUNSEL

Petitioner contends that he was denied due process of law under the Fourteenth Amendment to the U.S. Constitution pursuant to after-discovered evidence which proves prosecutorial misconduct, and that the prosecution knowingly presented false testimony to obtain an unlawful conviction. The evidence also proves that Petitioner was denied his Sixth Amendment Right to Counsel when trial counsel failed to use this evidence to suppress testimonies of false in-court and out-of-court identifications as to Petitioner’s identify pursuant to motions to suppress at the evidentiary hearings. Therefore, failing to subject the prosecution’s case to a meaningful adversarial testing and abandoning his role as an advocate at a critical stage.

Supporting Facts

 Petitioner contends that the after-discovered evidence consists of a transcript of three (CDs) which consists of interviews and statements taken by Investigator Garrett and Investigator Dustin Morris of The Georgetown County Sheriff’s Department, of State's witnesses as listed:

Willie Stanley, Larry Cooper, Douglas Morris, Jerilether "Toni" Jones and Sonia Jones.

These transcriptions contain exculpatory evidence as to Petitioner’s innocence and proves prosecutorial misconduct. Petitioner contends that the state's entire case rested solely on a “hearsay” statement that the deceased allegedly made that “Little D” or “D” shot him, in which an unidentified shooter was described by witnesses as to having been wearing a mask and other articles of clothing to conceal their identity.

PROSECUTORIAL MISCONDUCT

Petitioner contends that the state knowingly presented false testimony from key witness Douglas Morris, whom Petitioner never met, seen or knew, who has never met, seen or known Petitioner, to intentionally make false statements for the state, testifying falsely in both of Petitioner’s trials that he knew Petitioner by the nickname, “Little D,” or “D.” Petitioner found out through the discovery of the transcriptions of these CD’s that Douglas Morris, on December 2, 2008, the day after the shooting, in which Petitioner was charged, gave statements to Investigators Garrett and Investigator Dustin Morris in the presence of his mother, Sonya Jones and his sister Jerilether Jones. In this interview, Douglas stated that after Aundry was shot, he allegedly made a statement “D” was the one who shot him in reference to the unknown, unidentified shooter, according to witnesses was wearing a mask a hoodie and other articles of clothing to hide their identity. During this interview, Investigator Garrett then asked Douglas Morris, “do you know who “D” is”? Douglas Morris responded,” “No Sir.” Investigator Garrett also asked Douglas Morris during this interview, “This guy you saw come in did he remind you of anybody that you may have seen before?" Douglas responded, “No Sir, not really.” Douglas Morris also stated the individual, “He was kind of dark skinned.”

See: Transcription of Douglas Morris’ Interview of December 2, 2008, Taken by Investigators Melvin Garrett and Dustin Morris, Tr. P. 7, Lines 7 – 14.

   7. Sonia: What did Aundry say to Y’all in the club after he

   8. got shot?

   9. (A) He told us that “D” was the one who shot him.

10. (Q) Dee ?

11. (A) Yes, he said that he recognized him by his voice and Dee

12. was the one who shot him.

13. (Q) Do you know who D is?

14. (A) No Sir.

            See also: Tr., P. 4, Lines 24 – P. 5, L17

24. (Q) This guy that you saw come in, did he remind you

25. of anybody that you may have seen before?

   1. (A) No. Sir, not really.

FALSE TESTIMONY OF DOUGLAS MORRIS PRESENTED BY SOLICITOR SCOTT HIXON

Petitioner contends that the record shows that Solicitor Scott Hixon, in his first trial of 2012, knew that Douglas Morris gave statements and interviews to Investigators Melvin Garrett and Dustin Morris stating that he did not know who this “D” was allegedly mentioned by the victim, Aundry. Yet, Solicitor Hixson knowingly presented Douglas Morris’ false testimony that he know Petitioner by the nickname, “D.”

See: State v. Terron Dizzley, 2012

Motion, Tr. 70, L15 – P. 71, L1

15 … Aundry did clearly state, “I

16. cannot believe “D” done this to me. I recognize his voice”

17. (Q). Okay, what was the environment or the - what was the

18. environment like after the shooting in the, in that space?

19. (A) I mean, everybody was in shock. Like after, after he

20. stated the name I guess a couple of friends that had been out

21. there before had knew who “D” or whatever. They was in

22. shock. I was in shock myself from just seeing him a couple of

23. times before.

24. (Q) Okay, did you know Terron Dizzley prior to that evening?

25. I seen him like four or five times before, but as far as

1. (P. 71) like having a conversation like, no , no, Sir, I don't.

Trial of (2012) Direct by State

Tr. P. 247, L 25 – P 248, L1 – 7

25. (Q) Okay, did you know prior to this Terron Dizzley?

   1. (A) I saw him a few times before.

   2. (Q) Okay, did you know him by nickname?

   3. (A) “D.”

  4. (Q) Okay, and do you recognize “D” in the courtroom today?

  5. (A) Yes, sir, I do.

   6. (Q) And where is he?

    7. (A) Sitting right there.

 This is proof that Solicitor Bailey knew that Solicitor Hixon knowingly presented Douglas Morris’ false testimony in Petitioner’s first trial of 2012 that he knew Petitioner by the nickname “D,” which is contrary to his initial statements given to Investigator Garrett on December 2, 2008. However, Solicitor Bailey deliberately comprised the integrity of the fact finding and truth-seeking process by knowingly introducing Douglas Morris’ false testimony as to Petitioner’s identity again in Petitioner’s second trial of 2014 to obtain an unlawful conviction.

FALSE TESTIMONY OF DOUGLAS MORRIS PRESENTED BY SOLICITOR BAILEY IN SECOND TRIAL OF 2014

See: State v. Terron Dizzley (2014)

Tr. P. 265,L 13 – 25.

13. (Q) And did you know this Mr. Dizzley at the time?

14. (A) I've seen him four or five times before prior to the

15. event , but I didn't actually have a conversation with him as

16. knowing him.

17. (Q) Okay, in what context did you see Mr. Dizzley?

18. (A) Ma’am?

19. (Q) What occasion would you have had to have seen Mr.

20. Dizzley?

21. (A) If Aundry brought him around the house just every now and

22. then.

23. (Q) Okay. What was your understanding, based on your

24. personal knowledge, of the relationship between Andre Evans,

25. Jr., and Mr. Terron Dizzley?

1. (A) he never talked about that with me. (P. 266 )

            See: (2014), Tr. P. 278, L6 – 11

1. (A) Did you ever hear Aundry Evans, Jr. , who you called a

2. brother, referred to anyone else as “Little D” or “D”?

3. (A). No, ma’am.

4. (Q) Okay, so if he says “Little D” or “D”, who do you think he's

5. referring to?

6. (A) He was referring to as Terron.

Petitioner contends that not only did Solicitor Bailey knowingly present Morris’ false testimony, but the Solicitor also presented his testimony to mislead the jury and make false statements that the victim recognized Petitioner’s voice. However, this was false and not supported by the record. “Further, in Mr. Douglas’ proffered, testimony, Your Honor heard that in just a few moments Mr. Douglas is going to testify that the victim was able to recognize the defendant's voice.” The Solicitor knew that none of the witnesses stated that Aundry “allegedly” stated that “Terron Dizzley” shot him, and he recognized “Terron Dizzley” by his voice. The Solicitor's false statements to the judge proves that she intentionally introduced Douglas Morris’ false testimony to unlawfully, maliciously “pin” false nicknames on Petitioner as the shooter, and that Aundry “allegedly” stated that he recognized Terron Dizzley by voice.

See: (2014), Tr. P. 271, L 24, - P. 272, L1 – 2.

 Although Douglas Morris stated in his initial statement of December 2, 2008, that the shooter was, “ he was like a kind of dark skinned.” However, during Petitioner’s trial of 2014, Douglas testified: See: (2014), Tr. P. 268, L 13 – 21.

13. (A) Okay, do you – can you describe any further what

14. man who was masked look like? Were you able to see his

15. face?

16. ( A) No, ma'am.

17. ( Q)

18. (A) I, I was able to tell he was a little bit lighter than my

19. complexion at the time.

20. (Q) Lighter than your compassion?

21. (A) Yes, ma'am.

It is clear from the record that the solicitor and trial counsel knew of Douglas Morris’ initial interview of December 2, 2008, the time, day, and contents of Morris’ statements, because they were part of the state's investigation, and the solicitor made references to these interviews during redirect, and also Mr. Barr made references to them on cross by defense, however, both Solicitor Bailey and trial counsel failed to mention that Douglas Morris had stated in his initial interview that did not know who this alleged "D" or "Little D" was allegedly mentioned by victim.

Direct by State (2014, Tr. P. 286, L 14 – 16)

    14. (Q) the police officer that you told this to at your

    15. mother's house the next day, do you remember was he black or white?

    16. (A) He was black.

     Cross by Defense (2014, Tr.84, L 9 – 17)

      9. (Q) When did you tell police, if you did, that you

     10. heard Aundry make a statement?

     11. (A) December 2 , 2008,

     12. (Q) And you heard Aundry make a statement?

     13. (A) Yes, Sir.

     14. (Q) And you do know who you told that to?

     15. (A) I don't know which police officer.

    16. (Q) Where were you at the time you told then?

    17. (A) I was at my mother's house.

 The Solicitor even admitted in closing arguments that she knew some of her witnesses were not telling the truth. However, the Solicitor knowingly presented their false testimonies anyway.

Closing arguments by the State

(2014, Tr. P. 714, L 17. 22)

 “I wanted each and every, every one of you to know what every person who may have witnessed anything having to do with this saw. Some of them saw a lot. Some of them can't remember. Some of them aren't telling the truth. Clearly, I didn't tell them what to say or they would have done better.”

 Due process prohibits the state’s “knowing use of false evidence, because such use violates any concept of ordered liberty.” Napue v. Illinois, 360 U. S. 264, 269, 79 S. Ct. 1173, 3 L. Ed 2d 1217 (1959). Where a conviction obtained by the presentation of testimony known by the prosecuting authorities to be perjured, the constitutional requirement of due process is not satisfied. Pyle v. Kansas, 317 U. S. 213, 87 L. Ed 214; Mooney v. Holohan, 294 U. S. 103. Berger v. U. S., 295 U.S. 78 (1935), “The prosecutor’s duty in a criminal prosecution is to seek justice, not to convict.” Giglio v. U.S. 405 U.S. 150 (1972); Miller v. Pate, 386 U.S. 1 (1967). Therefore, the improper methods calculated to produce a wrongful conviction, is prohibited by due process.

DENIAL OF SIXTH AMENDMENT RIGHT TO COUNSEL, ABANDONMENT AT A CRITICAL STAGE

 Jerilether Jones and Sonia Jones

 Jerilether Jones, (victim’s girlfriend, who was not a victim of the crime) and sister of Douglas Morris testified in Petitioner’s second trial. Jerilether's testimony consisted of several “hearsay” statements alleging that she overheard an argument with Evans and this “D” over the speaker phone. Sonia Jones, Jerilether, and Douglas Morris’ mother, also gave statements on December 2, 2008, in the presence of Douglas and Jerilether to investigators, that she also heard Evans make references in his alleged argument on speakerphone with this “D” or “Little D,” about “Dee’s kids or babies. Petitioner contends that it would have been impossible to have been Petitioner on the other end of the telephone, because he did not have any kids at that time. Sonia also stated that Evans told her that this “D” was on the run from the F.B.I. Petitioner further contends that he has never had any federal warrants, therefore, it would have been impossible for it to have been him whom Sonia alleged victim was talking to.

These transcriptions of their interviews also contains a photo lineup in which Sonia Jones and Jerilether Jones was asked to pick out of a photo lineup who they knew as “D” or “Little D,” each of them picked two different people. Sonia picked #4 and Jerilether picked #5.

Petitioner contends that Sonia Jones and Jerilether Jones had never met, known, nor seen him, and he had never known, seen, nor met either of them.

Petitioner contends that this evidence would have proven that:

1. Jerilether Jones’ testimony as to Petitioner’s identity being “D” or “Little D” was unreliable.

2. The photo lineup identification process was unduly suggestive an unreliable,

3. Jerilether and her mother, Sonia Jones, made up this story about overhearing Evans arguing with this alleged “D” on the phone.

4. If there is any truth to this “alleged” phone conversation, it would be that it was impossible to have been the Petitioner because he did not have kids at the time, and he never had any federal warrants.

See: Transcription of Sonia and Jerilether Jones interview of December 2, 2008, taken by Investigators Melvin Garrett and Dustin Morris; Tr. P. 13, Lines 11 – 20; Tr. P. 16. Lines 14 – 23; Tr. P. 19 Lines 4 – 13.

Willie Stanley

           Willie James Stanley, who was also an alleged witness of the shooting that occurred, was asked in these interviews whether he ever heard the name “Little D” or “D” before and Stanley stated that he had heard the names mentioned by Evans. Stanley was asked by Investigators in what reference did Evans mention these names. Stanley responded that Evans said that this “Little D” race cars. Petitioner contends that he has never owned a race car, nor did he ever race cars.

 Petitioner contends that he lived in Orangeburg, S.C. and whomever Stanley “alleged” that Evans made reference to was impossible to have been Petitioner.

 Stanley also stated that Evans spoke to him that night saying he needed to change the way he was living. Stanley stated that he heard and knew Evans was a “Jack boy,” that he robbed drug dealers.

See: Transcription of Willie Stanley’s interview of December 11, 2008, taken by Investigators Melvin Garrett and Dustin Morris; Tr. P. 7, Lines 6 – 16; Tr. P. 9, Lines 5 – 10, Lines 1 – 5.

Petitioner contends that this evidence would have affected the outcome of his trial, whereas, it is clearly material to the issue of Petitioner’s innocence, whereas, he was convicted by witnesses from the state who lied in court as to his identity, falsely “pinning” the nicknames “Little D” and “D” on him. This information clearly proves that these witnesses never knew Petitioner. This evidence also proves that the description and the reference in which witnesses stated that Evans made in reference to this “ D” that it would have been impossible to have been Petitioner. This evidence also shows that the photo-line-up identification process was unduly suggestive and unreliable. It would also be material as to the issue of innocence, whereas, the state’s entire case rested solely on the Petitioner being the unknown, unidentified shooter alleged as “Little D” or “D.” See: Wearry v. Cain, 577 U. S. 385 (2016), “Beyond doubt, the newly revealed evidence suffices to undermine confidence in Wearry’s conviction, including inmates’ statement casting doubt on credibility of state’s star witness, violated the defendant's due process rights, where trial evidence resembled a house of cards built on jury crediting star witnesses’ account rather than defendants’ alibi.” See also: McQuiggin v. Perkins, 569 U. S. 383 (2013), “More than eleven years after his conviction became final, Perkins filed his federal habeas petition alleging inter alia, ineffective assistance of trial counsel. To overcome AEDPA’s time limitations, he asserted newly discovered evidence of actual innocence, relying on three affidavits, the most recent dated July 16th, 2002, each pointing to Jones as the murderer. The District Court found that even if the affidavit could be characterized as evidence new discovered, Perkins had failed to show diligence entitling him to equitable tolling of AEDPA’s limitation period. Alternatively, the court found Perkins had not shown that taking account of all the evidence, no reasonable juror would have convicted him. The Six Circuit reversed. Acknowledging that Perkin’s petition was untimely, and he had not diligently pursued his rights, the court held that Perkins's actual innocence claim allowed him to present his ineffective assistance of counsel claim as if it had been filed on time. In doing so, the court apparently considered Perkins’ delay irrelevant to appraisal of his actual innocence claim.”

Petitioner contends that the federal courts, when raising a claim of after-discovered evidence, only requires that the after-discovered evidence proves that Petitioner’s due process rights were violated; and to prove actual innocence, the federal courts only requires that, “ in light of all the evidence, it was more likely than not that no reasonable juror would have convicted him.” See: Schlup v. Delo, 513 U. S. 331 (1995); Herrera v. Collins, 506 U. S. 390 (1993); House v. Bell, 547 U. S. 518 ( 2006); Murray v Carrier, 477 U. S. 478 (1986).

Not only has Petitioner proved that the after-discovered evidence resulted in several independent constitutional violations, but he has also proved that his trials itself, were constitutionally inadequate and that there has been a fundamental miscarriage of justice and fairness that is shocking to the universal sense of justice, which raised to te level of errors resulting in a false identification and the unlawful incarceration of Petitioner.

Petitioner contend that the after-discovered evidence proves that he was denied his Sixth Amendment right to counsel who not only failed to disclose this evidence to Petitioner, but trial counsel sat through two trials and never used this evidence during Petitioner’s evidentiary hearing to suppress any testimony from Douglas Morris as to any in-court or out-of-court identification of Petitioner during both trials. See: Jones v. Gavin, 395 F. Supp. 3d. 440 (2019), “Petitioner was denied effective assistance as a result of trial counsel’s failure to impeach eye-witnesses’ identification testimony.”

The after-discovered evidence also proves that trial counsel failed to use this evidence during Petitioner’s evidentiary hearing to suppress the police-orchestrated photo-line-up of Jerilether Jones on the grounds that: it was unnecessary, unduly suggestive and tainted, and unreliable, and so infected Petitioner’s trial as to deny him the right to due process. The record shows that trial counsel simply waived Petitioner’s Neil v. Biggers hearing and the right to challenge the identification process.

The after-discovered evidence also proves that trial counsel failed to use this evidence at Petitioner’s evidentiary hearing as to references made by Sonia Jones and Willie Stanley as to the alleged “D” or “Little D,” which proves that it was impossible to have been Petitioner, to show that there was a grave misidentification as to Petitioner being this alleged “Little D.”

In light of the fact that the state entire case rested solely on identification, trial counsel’s failure to use this after-discovered evidence to challenge the identification proces resulted in a failure to subject the prosecution's case to a meaningful adversarial testing during a critical stage, that which being Petitioner’s evidentiary hearing, which made the adversarial system it self presumptively unreliable. See: U.S. v. Cronic, 466 U.S. 648 (1984). Under the circumstances, The United States Supreme Court has held that no specific show of prejudice is required because Petitioner had been denied the right to effective cross examination which would constitute error of the first magnitude and no amount of showing of want of prejudice would cure it. Davis v. Alaska, 415 U.S. 308 (1974).

          For the foregoing reasons, Petitioner must be granted an evidentiary hearing and granted a new trial pursuant to after-discovered evidence.

GROUND 11

Trial counsel was ineffective which prejudiced Petitioner by failing to investigate, interview, and call witnesses who knew Petitioner, and knew that he did not go by nor was known by the nicknames “D” or “Little D," and who also has been in the presence of victim and Petitioner and knew that victim never called Petitioner “D” or “Little D,” to testify in Petitioner's trial, whereas, trial counsel knew that the state's entire case rested solely on testimony of witnesses pursuant to an “alleged” hearsay statement of victim that “D” or “Little D” shot him, and trial counsel knew that the state would falsely attribute the nicknames to Petitioner and alleged that victim was speaking of Petitioner.

 The record proves that the witness trial counsel failed to interview and call, testified in Petitioner's November 28, 2018 PCR that they knew Petitioner for years and never known him to go by the nicknames "D" nor "Little D," and that they also knew victim and has been in the presence of both Petitioner and victim and never heard victim call Petitioner by these nicknames. The witnesses are: Georgetown County Deputy James Elmo, Jawea Collins, Grover Gasque, Ray McCain, Carlos Wineglass, Gwendolyn Frasier, Joyce Brown, Autaurus Dizzley, and alibi witnesses LaQuesha Felder, Daniel Robinson, Devon Dizzley and Stephon Jamison.

Supporting Facts

Petitioner contends that that the prosecution’s entire case rested solely on identity pursuant to an alleged hearsay statements allegedly made by victim that “D” or “Little D” shot him. Petitioner contends that he told trial counsel on several occasions that he has never gone by the nickname’s “D” nor “Little D,” and provided him with the names of witnesses who would corroborate this, and asked trial counsel to interview them and called them as witnesses. Trial counsel agreed and made several appointments to speak with these witnesses, and Petitioner would take these days off from work only for trial counsel to cancel at the last minute. Petitioner also told trial counsel that his alibi witnesses had been in the presence of the victim and him and also knew that victim never referred to Petitioner by such nicknames. However, trial counsel also failed to question his alibi witnesses as to these matters. See: Transcript of November 28, 2018 PCR of witnesses mentioned testimonies.

Legal Analysis

Petitioner contends that the “alleged” hearsay statements involving vague nicknames which did not identify anyone, hearsay statements of such, the Supreme Court of the United States has held are “accusatory” and violates the Six Amendment Confrontational Clause and burden shifting, thus, inadmissible. Gray v. Maryland, 523 U.S. 185 (1998); Bruton v. U.S., 391 U.S. 123 ( 1968); Melendez – Diaz v. Massachusetts, 557 U.S. 305 (2009); Maryland v. Craig, 497 U.S. 836 (1990); Pointer v. Texas, 380 U.S. 400 (1965); U.S. v. Owens, 484 U.S. 554 (1988); Barber v. Page, 390 U.S. 719 (1958); Crawford v. Washington, 541 U.S. 36 (2004); In re Winship, 397 U.S. 358, 364 (1970).

 Trial counsel's failure to investigate, interview, and call witnesses who knew Petitioner had never been known by such nicknames, when trial counsel knew that the state would present evidence falsely attributing the nicknames to the Petitioner as a shooter whom victim allegedly referred to by the same nicknames, resulted in trial counsel entirely failing to subject the prosecution's case to meaningful and adversarial testing. Under such circumstances, prejudice is presumed. U. S. Cronic, 466 U.S. 648 (1984).

            Petitioner contends that under such circumstances, counsel's performance was deficient, and his representation fell below an objective standard of reasonableness and prejudiced Petitioner. Whereas, had trial counsel presented these witnesses it would have shown that Petitioner was never known by these nicknames in his community of peers nor by the victim. There is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. Andrus v. Texas, 140 S.Ct. 1875 (2020), “The Court held that: (1) Defense counsel provided constitutionally deficient performance in failing to investigate mitigating evidence and in not rebutting aggravating evidence; (2) Defense counsel’s failure to uncover and present voluminous mitigating evidence was not justified as a tactical decision; and (3) Significant question as to whether Court of Criminal Appeals properly considered Strickland’s prejudice prong warranted remand.” Wiggins v. Smith, 539 U.S. 510 (2003), "(1) Decision of counsel not to expand their investigation of Petitioner’s life history for mitigating evidence beyond presentence investigation (PSI) report and department of social services records fell short of prevailing professional standards, and (2) inadequate investigation by counsel prejudiced Petitioner. Reversed.” Williams v. Taylor, 529 U.S. 362 (2010); Mitchell v. Kemp, 483 U.S. 1026 (1987), “In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.”

 For the foregoing reasons, as determined by clear established Federal Law as determined by the United States Supreme Court, due to trial counsel's ineffectiveness, Petitioner is entitled to a new trial. See: November 28, 2018, PCR Transcript, Pages 156, L11 – P. 158 L1 – 2.

GROUND 12

Trial counsel was ineffective which prejudice Petitioner by failing to object to the nicknames,“D” and “Little D” being attributed to Petitioner and also the nicknames “Diz” being attributed to Petitioner during trial. These nicknames were mentioned over 91 times in the Petitioner’s trial and attributed to him in reference to an “alleged” “hearsay statement” by victim that “D” or “Little D” shot him as to the unidentified shooter.

Supporting Facts

 Petitioner contends that the state's entire case rested solely on an alleged hearsay statement by victim involving the nicknames, “ D or little D,” as the person who shot him. Witnesses testified the shooter wore a mask and could not be identified, and the victim never indicated who this “D” or “Little D” was.

 Trial counsel’s failure to object to the nicknames, “D” or “Little D” being attributed to Petitioner violated his Six Amendment Rights under the Confrontation Clause, to cross- examine victim as to who he was referring to by nicknames as to the alleged statement. Such testimony was an out- of-court statement by a non- testifying declarant, offered to prove the truth of matter asserted as to the identity of the unknown shooter. U. S. v. Smallwood, 299 F. supp. 2d 578 (2004), “Testimony of murder victim's sister that she overheard victim having a loud and heated telephone conversation, that victim had used the name “Ty” during the conversation was inadmissible hearsay at trial of defendant who allegedly used same nickname and co-defendant charged with murder of victim; victim’s sister’s testimony, offered to prove that victim was speaking on telephone to defendant on date of murder, was an out-of-court statement by a non-testifying declarant, the victim, offered to prove the truth of the matter asserted as to the identity of the caller."

 Such high prejudicial, “accusatory” testimony is exactly what the constitution forbids. See: Bruton v. United States, 391 U.S. 123 (1968); Gary v. Maryland, 523 U.S. 185 (1998). “The Supreme Court, Justice Breyer, held that Bruton rule prohibiting introduction during joint trial of confession of non-testifying co-defendant which name defendant as perpetrator extends also to redacted confessions in which name of defendant is replaced by blank space, word “deleted,” nickname or similar symbol, which violates non-confessing defendant’s Sixth Amendment Right to cross-examine witnesses.” Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), “Analysts were not removed from coverage of Confrontation Clause on theory that they were not “accusatory” “witnesses.”

 By failing to object to these nicknames being attributed to Petitioner, trial counsel failed to subject the prosecution case to a meaningful adversarial a testing, which was a constitutional error of the first magnitude so that no amount of showing of what of prejudice could cure it. Davis v. Alaska, 415 U.S. 308 (1974); Brookhart v. Janis, 384 U.S. 1 (1966); Smith v. Illinois, 390 U.S. 129 (1968).

 Petitioner contends that trial counsel's failure to object to the nicknames "D" and "Little D" being attributed to him which is the same nicknames allegedly mentioned by the victim as to who shot him also relieved the state of proving essential elements of the crime, most importantly identity, and was also burden shifting which would force Petitioner to take the stand and testify that he did not go by those nicknames and did not shoot Aundry Evans, Jr. In re Winship, 397 U. S. 338, 364 (1970), “The Due Process Clause requires the government to prove beyond a reasonable doubt every element of the crime with which a defendant is charged. Any shifting of the burden of persuasion “must withstand constitutional scrutiny.” Mullaney v. Wilbur, 421 U.S. 684 (1974); Paterson v. New York, 432 U.S. 510, 524 (1979).

Statement of Facts as to “ Diz”

 Petitioner contends that according to witnesses who allegedly heard victim make the alleged hearsay statement, only “D,” and “Little D” was part of the statement. The solicitor added the nickname “Diz” as a part of the identification process which was never part of the alleged hearsay statement.

 However, “Diz” is Petitioner’s nickname, short for his last name, Dizzley. Because Petitioner was tried by a jury of his peers and some jurors knew Petitioner by the nickname “Diz," Petitioner contends that by adding the nickname “Diz” to the identification process confused the jury to believe that the victim identified Petitioner as his shooter. Whereas, during deliberations the jury foreperson came forth with the question, when did the witnesses Moe, Naomi, DJ , an Willie Stanley report, “ I heard Dre say “Little D” “Diz” did it?” See: Tr. 748, L 16 – 21.

 The nickname, “Diz” was used throughout Petitioner’s entire trial, and closing arguments by the state. See: Tr. P. 715, L 7 – 8, Tr. P. 724, L6 – 11.

 Petitioner contends that the nickname “Diz” was used throughout his entire trial over 28 times and “D” and “Little D” was used over 63 times and was not harmless and so infected this trial as to deny him the right to due process. Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974); Darden v. Wainwright, 477 U.S. 168, 181 (1986). See: November 28, 2018 PCR Transcript, Page 156, L11 – P. 158, L1 – 2.

GROUND 13

Trial counsel was ineffective which prejudice Petitioner when he waived the Neil v. Biggers hearing and the photograph lineups were unduly suggestive, tainted, unreliable, and resulted in an irreparable false misidentification.

Supporting Facts

 Aside from the fact that Naomi Alston and Jerilether Jones were not witnesses of the crime, it is the intentionally misleading manner in which the solicitor presented the photo-lineups which makes it reviewable under Neil v. Biggers. “Specifically, Ms. Alston and Ms. Jones picked this defendant out of a lineup as being “the one" who was being referred to by nickname.” See: Tr. P. 119, L23 – 25.

 Petitioner contends that the photo-lineups were used in conjunction with an “alleged” hearsay statement by victim who "allegedly" identified the shooter by the vague nicknames "D" and "Little D." The solicitor used Alston and Jones to play the role of the victim to pick out of a photo-lineup the person who they think victim was speaking of when he allegedly made the statement “D” or “Little D” shot him.

 To further prejudice Petitioner, the solicitor elicited testimony from Naomi Alston, Jerilether Jones, Douglas Morris, and Maurice Giles, that victim was speaking of Petitioner when he made the “alleged” statement, and that victim only knew one “Little D” and that person was Petitioner. See: Tr. P. 116, L 10 – P. 117, L 1 – 8, specifically, Tr. P. 116, L 25 – P. 117, L1 (Naomi Alston).

25. (Q) And do you know who Aundry was calling “D”?

  1. (A) Yes, ma’am, I did.

See also: Tr. P 191, L 16 – P. 193, L 1 – 8, specifically, Tr. P. 198, L 23 – P. 199, L 1 – 2.

23.. (Q) do you not agree the truth of the matter is that you don't

24. know if he knew somebody else other than Terron Dizzley that

25. he referred to as “ D”; Do you?

  1. (A) Well, when we were together, I knew the only person that

  2. he called “D” was Terron.

Jerilether Jones, See: Tr. P. 246, L 7 – P. 253, L1 – 17, specifically Tr. P. 247, L 9 – 17.

    9. (Q) And what names did Aundry call Mr. Dizzley?

  10. (A) D or Little D, also.

   11. (Q) Did you ever hear Aundry call anybody else in his life

   12. Little D?

   13. (A) No.

   14. (Q). To the best of your knowledge, did he know anyone else in

    15. his life or on TV or out there in the world that he would have

    16. refer to as Little D?

    17. (A) No, ma’am.

          Petitioner contends that he was never identified as the person who shot victim and such out-of-court and in-court identification are contrary to the five requirements set forth in Neil v. Biggers, 409 U.S. 1988 ( 1972 ), “ 1. Witness’ opportunity to view perpetrator at time of crime;

2. Witness’ degree of attention at time of offense; 3. Accuracy of witness’ prior description of perpetrator; 4. Witness’ level of certainty when identifying defendant as perpetrator at time of confrontation; and 5. length of time between crime and confrontation.”

 Petitioner contends that trial counsel knew that these factors could only be determined by cross-examination of the victim himself, not through photo-graphic lineup testimony from witnesses who did not witness the crime, presented for the purpose of speaking for victim as to who Alston and Jones believe victim was referring to by nicknames as to who shot him, in reference to the alleged hearsay statement. Manson v. Brathwaite, 432 U.S. 98 (1977), “reliability is the linchpin in determining the admissibility of identification testimony for confrontation.” Simmons v. U.S., 390 U.S. 377 (1968), “ The danger that initial identification by photograph may result in convictions based on misidentification may be substantially lessened by course of cross examination at trial which exposes to jury the methods potential for error.”

 Petitioner contends that trial counsel knew that the states entire case rested solely on identification. By waiving Petitioner’s Neil v. Biggers hearing, trial counsel failed to apply any constitutional or statutory safeguards to suppress or challenge the highly prejudicial photo-lineup procedure. Whereas, by waiving Petitioner’s Neil v. Biggers hearing, trial counsel also waived the right to object to the photo- lineups, and during Jones’ testimony, trial counsel stated in the presence of the jury that “ he stipulates” the photo-lineup identification procedure. Tr. P. 252, L 3 – 5.

3. Mr. Bar: Your Honor: I would like to stipulate that she has

4. identified Terron Dizzley as the person that she referred to

5. as D.

 At this point, by stipulating that Jones identified Petitioner as “D,” the same nickname “allegedly” mentioned by the victim as to who shot him, trial counsel assisted the solicitor in prosecuting Petitioner, therefore, resulting in an actual breakdown of the adversarial process during trial, and resulted in trial counsel abandoning Petitioner at a critical stage. See: Cronic, “Thus, the adversarial process protected by the Six Amendment requires that the accused have “Counsel acting in the role of an advocate.” Anders v. California, 386 U.S. 738 (1967). But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated.”

 Petitioner contends that he explained to trial counsel on several occasions that he did go by the nicknames “D” or “Little D” and that he did not know Jones, and Jones did not know him or has ever met him. However, trial counsel still waived Petitioner’s Neil v. Biggers hearing and the right to challenge the photo-lineups. See: November 28, 2018 PCR Transcript, Pages 155, L 15 – P. 156, L 1.

            Petitioner contends that by waiving the Neil v. Biggers hearing, trial counsel failed to subject the prosecution's case to a meaningful adversarial testing, therefore, abandoning Petitioner at a “critical stage” that which being his evidentiary hearing. See: Hamilton v. Alabama, 368 U.S. 52 (1961), “The Court wrote in Alabama, an arraignment is a critical stage of a criminal proceeding. It was unnecessary to make a showing that the defendant suffered a disadvantage through absence of counsel." U.S. v. Wade, 388 U.S. 218 (1967), “The Supreme Court held that a post-indictment, pre-trial lineup is a critical stage. Critical stages include the pre-trial type of arraignment where certain rights may be sacrificed or loss. White v. Maryland, 373 U.S. 59 (1963),” U.S. v. Cronic, 466 U.S. 648 ( 1984), “If Counsel entirely fails to subject to prosecution's case to a meaningful adversarial testing, there has been a denial of Six Amendment Rights which makes adversary process itself presumptively unreliable.” See: Tr. P. 252, L3 – 5; Tr. P. 251, L1 – P 253, L 1 – 17.

GROUND 14

Trial counsel was ineffective which prejudice Petitioner by failing to object to Investigator Garrett's prejudicial testimony that he had a name from a person he investigated before he met with Alston and Jones, which led him to the initial lineup with Alston and Jones to identify who they thought was “D.” See Tr. P. 545, L 15 – 21.

Supporting Facts

 Petitioner contends that trial counsel's failure to object to Investigator Garrett's testimony that an unnamed unknown person that he interviewed led him to the initial lineups with Alston and Jones violated Petitioner’s right to cross examine this unknown person who bears testimony against him. Thus, violating Petitioner’s Six Amendment rights under the Confrontation Clause and Fourteenth Amendment right to due process. See: Smith v. Illinois, 390 U.S. 129 (1968), “The Supreme Court held that defendant had rights guaranteed to him under Six and Fourteenth Amendments of the Constitution to cross-examine informer who was principle prosecution witness as to informers actual name and address.” Davis v. Alaska, 415 U.eS. 308 ( 1974), “Constitutional right of accused to be confronted with witnesses against him means more than allowed to confront witnesses physically and a primary interest secured by it is the right to cross-examination." Pointer v. Texas, 380 U.S. 400 (1965); Bruton v. U.S., 391 U.S. 123 (1968); Gary v. Maryland, 523 U.S. 185 (1998); Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2000); Barber v. Page, 390 U.S. 719 (1968); Douglas v. Alabama, 380 U.S. 419, 420 (1965); Dutton v. Evans, 400 U.S. 74 (1970); Crawford v. Washington, 541 U.S. 36 (2004); U. S. v. Owens, 484 U.S. 554 (1988).

 Petitioner contends that the State's entire case rested on identity of an unknown individual who shot victim and an “alleged’ “hearsay statement” by victim that “D” or “Little D” shot him. By failing to object to such highly judicial testimony was not harmless and denied Petitioner the right to cross-examination and no amount of showing of want of prejudice could cure it. Davis v. Alaska , 415 U. S. 308 ( 1974).

GROUND 15

JUROR MISCONDUCT, EXTRANEOUS INFLUENCE, FRAUD UPON THE COURT

Trial counsel was ineffective for failing to discharge juror #332, Tanya Sisk upon request and that all jurors be questioned when the courts learned that: (1) Ms. Sisk engaged in a highly prejudicial conversation with Lead Investigator Dustin Morris one morning before the trial started that she felt Petitioner should be locked up because of the seriousness of the crime which he was charged instead of being out on bond while going to trial, which clearly showed that Juror, Ms. Sisk was biased and had a preconceived notion as to Petitioner’s guilt;

(2) New-discovered evidence proves trial judge failed to disclose to the defense and the prosecution that the jury sent a message to the judge indicating that juror #332 Tanya Sisk did share the highly prejudicial conversation that she had with Investigator Morris with them, and as a result, the jury had conversations about their safety and concerns that because Petitioner was not locked up, they could possibly share the same elevator with Petitioner. This evidence proves that Petitioner's entire jury was tainted, and trial judges failure to disclose this evidence amounted "fraud upon the court," and a failure to ensure that Petitioner’s Six Amendment Right to an impartial jury and Fifth and Fourteenth Amendment Rights to due process was not violated.

Supporting Facts

On the morning of April 3, 2014, Investigator Dustin Morris indicated that

Ms. Sisk, juror #332, approached him in the parking lot of the courthouse and expressed that she observed Petitioner arrive to court, and he was driving, and that she was concerned about Petitioner not being in jail and was surprised that Petitioner was free with such serious charges. Investigator Morris testified that he then asked Ms. Sisk “if he (Petitioner) made any kind of threats or looked at her or said anything to her, and she said he did not.” See: Tr. P. 572, L1 – 15.

 The Supreme Court of the United States has repeatedly insisted in a wide variety of contexts the right to be tried before a jury capable and willing to decide the case solely on the evidence because it is a cornerstone of our criminal justice system. Irvin v. Dowd, 366 U.S. 717 (1961), “Right to jury trial guarantees to criminally accused fair trial by panel of impartial, indifferent jurors."

 Trial judge also asked Ms. Sisk did she feel threatened by Petitioner’s presence. See: Tr. P. 575, L2 – P, 576, L1.

 These questions from Investigator Morris and trial judge were highly prejudicial and were extraneous influences to Ms. Sisk that Petitioner was capable of violence that would result in Petitioner threatening Ms. Sisk which violated Petitioner’s right to due process, and right to the presumption of innocence until proven guilty. Whereas, Investigator Morris testified that he walked Ms. Sisk in the courtroom to make sure she did not feel like she was in any danger in response to the judge’s question. Investigator Morris testified that while walking they spoke about the weather. See: Tr. P.572, L16 – 20. Winship, 397 U.S. 358, 364 (1970), “Beyond a reasonable doubt standard encourages community confidence in criminal law by giving “concrete substance” in the presumption of innocence.”

Remmer v. U.S. 347 U. S. 227 (1954), “In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during the trial about the matter pending before the jury is presumptively prejudicial if not made in pursuance to known rules of court and instructions and directions of the court during the trial, with full knowledge of the parties.”

 Juror Sisk indicated that her concerns that Petitioner was not locked up pursuant to his charge and out on bond was from simply watching television. Ms. Sisk placed the detriment of his life and liberty on her background of “simply watching television” as if Petitioner’s life was no more than a “simple” television show. Tr. P. 576. L18 – P, 577, L1 – 8, also: Tr. P.577,, L9 – P. 578, L1 – 6. This shows that Ms. Sisk was not a competent juror. Mcllwain v. U.S., 464 U.S. 972 (1983); Peters v. Kiff, 407 U.S. 493 (1972); Jordon v. Massachusetts, 225 U.S. 167 (1912), “Due process requires that jurors be sane and competent."

Fraud Upon the Court, Proof that Jury was Tainted by Extraneous Influences of Ms. Sisk, Juror #332, and Judge Couch Knew About It and Did Not Share This Information with the Defense

 On April 2, 2018, Petitioner retained Private Investigator, Benny Webb, to investigate his jurors to ascertain whether Ms. Sisk also spoke to the jury about her concerns that Petitioner should have been locked up while his charges was pending. On April 26, 2018, Investigator Webb spoke to Juror #189, Desjuana Johnson, who confirmed that Ms. Sisk did express these highly prejudicial concerns to the rest of the jury.

 Testimony of Desjuana Johnson

            On November 28, 2018, Ms. Johnson testified under oath at Petitioner’s PCR that, not only did Ms. Sisk express these concerns to the entire jury, but the entire jury also spoke about these concerns. See Transcript of 2018 PCR Hearing, Page 57, .L 23 – P. 58, L 1 – P. 59, L 1.

Tr. P. 57, L 23 – P. 58, L 1 – 14.

23. Q. Alright. And do you remember if anything happened with

24. another juror in that case

25. A. One juror had a concern about Mr. Dizzley being able to

  1. commute back and forth because she had a concern that he

  2. could use the same elevator that we used when we would travel

  3. back and forth to court, and she voiced her concern. She said

 4. she was just concerned, her safety wasn’t -- she didn't say

 5. her safety was at risk, but she did voice that concern.

6. – 7 Q. Alright. And she talked about that with the entire jury?

  8 – 10. A. We talked about it. I don’t remember exactly what the setting was, but we did have a Conversation about it. And they just made sure everybody felt safe.

11. Q. I’m sorry. Who made sure everybody felt safe?

12. A. I think we sent a message to the Judge. I don’t recall.

13. exactly what happened, but they made sure everybody felt safe.

14. and nobody felt that their safety was at risk. See: Tr. P. 58, L11 – 14 (PCR Transcript).

 The record shows that Juror #189, Desjuana Johnson’s testimony revealed that they sent a message to the judge about these “extremely” prejudicial conversations Juror Tanya Sisk shared with the entire jury, pursuant to Ms. Sisk’s conversation with Lead Investigator Morris.

 Judge Couch knew that Petitioner’s entire jury was tainted when received that message from the jury. Judge Couch knew that the only remedy would be a mistrial. Yet, Judge Couch did not disclose this jury note to the defense. Mattox v. U.S. 146 U.S. 140 (1892), “While the granting or refusing of a new trial is in the sound discretion of the Federal Courts, and not subject to review, yet, on a motion for a new trial, the action of the court in rejecting the affidavits of jurors as to the existence of an extraneous influence is not within that discretion and is reviewable on “writ of error.” Remmer v. U.S. 227 (1954); Shepard v. Maxwell, 384 U.S. 333 (1966), “The United States Supreme Court, held that failure of state judge in murder prosecution to protect defendant from inherently prejudicial publicity which saturated community and control disruptive influences in courtroom deprived defendant of a fair trial consistent with due process.”

 Trial counsel's ineffectiveness in failing to request that Juror #332, Tanya Sisk, be discharged and request that all jurors be questioned as to Tanya Sisk’s extraneous conversation with Investigator Morris deprived Petitioner of his right to due process which would have also revealed the fraudulent acts of Judge Couch in withholding the jury's note from defense.

   U. S. v. Throckmorton, 98 U.S. 61 (1878), “Where unsuccessful party has been prevented from fully exhibiting his case, by fraud or deception, as by keeping him away from court , a false promise of compromise, or keeping him in ignorance of the suit; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where attorney regularly employed corruptly sells out his client’s interests ; and, in similar cases where there has never been a real contest, new suit maybe maintained to set aside judgment.” See: Barnes v. Joyner, 751 F. 3d. 229 (4th Cir. 2014), “The Court of Appeals, Thacker, Circuit Judge, held State Post-Conviction Court’s failure to apply a presumption of prejudice and investigate defendant’s jury misconduct claim, which was based on external influence on the jury, was unreasonable application of clearly established federal law.”

GROUND 16

Abandonment at a Critical Stage United States v. Cronic Ineffective Assistance of Counsel

Trial counsel was ineffective which prejudiced Petitioner when he abandoned Petitioner at the sentencing phase of his trial when he failed to request that the jury be polled. Whereas, juror #164 did not assent nor raise her hand when the judge asked if their verdict was unanimous.

Supported Facts

During the reading of the verdict the jury foreman published a verdict of guilty, and then the judge asked the following question, “Madam forelady and ladies and gentlemen of the jury, this is your verdict and still your verdict let it be known by raising your right hand.” However, juror #164, did not raise her hand. The judge then singled out the juror #164 directing the following question toward her: “Ma’am are you raising your right hand, the lady in the back? Is this your verdict and still your verdict? If so, please raise your hand. See: Tr. P. 755, L5 – 11 – 15. (Note: Court reporter did not add the fact that the juror was asked more than once and was very reluctant to raise her hand.) Trial counsel was ineffective which prejudiced Petitioner for failing to request that the jury be polled to ensure that the juror did not misunderstand the verdict and to ensure that the verdict was unanimous. Whereas, the record shows that there was clearly a suspicion that the verdict was not the result of the conscientious and unanimous conviction of the jurors. Whereas, juror #164 did not assent or raise her hand when the judge asked if their verdict was unanimous. Trial counsel also failed to object to the judge singling out and questioning juror #164, which was coercive, especially in light of the judge’s knowledge that she was the only one that did not raise her hand and was very reluctant to raise her hand and sat with tears in her eyes. Trial counsel’s silence, failing to request that the jury be polled amounted to abandonment at a critical stage of Petitioner’s trial, thus, violating Petitioner’s Fourteenth and Six Amendment Right to effective assistance of counsel. Petitioner’s mother addressed this matter to the trial judge during the sentencing phase. “I noticed when the -- you said was there a unanimous verdict, there was one juror that was very reluctant to raise her hand, and finally, she did.” See: Tr. P. 760, L 25 – P. 761, L1 – 2. Brasfield v. U.S ., 272 U.S. 448 (1926), “Questioning jury on its recall after failure to agree relative to its numerical division constitutes error, ground for reversal.” Burton v. U.S., 196 U.S. 283 (1905), “Where a conviction was reversed on other ground, this court condemned the practice inquiring a jury, unable to agree, the extent of its numerical division, although a response indicating the vote in favor of or against the conviction was neither sought nor obtained.” Lowenfield v. Phelps, 484 U.S. 231 (1988);

 The totality of the circumstances in light of the fact that only one juror did not raise her hand and sat with tears in her eyes, when trial judge asked her several times, singling her out to raise her hand if this is “still your verdict”, when juror #164 may not have agreed with the verdict doing deliberations, was overly coercive and the weight of the judge’s authority directed towards juror #164 clearly from the record pressured juror #164 to prematurely surrendering a decision. Jenkins v. U.S. , 380 U.S. 445 (1965), “In its context and under all the circumstances of criminal case trial judges statement in course of his response to juror’s note of their inability to agree on verdict that you have got to reach a decision in this case was coercive.”

Under such circumstances, by trial counsel's failure to request that the jury be polled resulted in

his failure to subject the prosecution’s case to meaningful adversarial testing, thus abandoning Petitioner at a critical stage.” U. S. v. Cronic, 466 U.S. 648 (1984).

 The Supreme Court of the United states held unanimously that sentencing was a critical stage of a criminal proceeding where counsel's presence is required. Mempa v. Rhay. 389 U.S. 128 (1967); Gardner v. Florida, 430 U. S. 349 (1977), “Affirming that's sentencing is a critical stage .”

 Petitioner contends that under such circumstances Petitioner is not required to prove prejudice; prejudice is presumed, and Petitioner is entitled to a new trial. See: November 28, 2018 PCR Transcript, Pages 162, L19 – P. 163, L1 – 14.

GROUND 17

 Trial counsel was ineffective which prejudiced Petitioner when he slept through days of Petitioner’s trial and also the Judge and certain jury members, which violated Petitioner’s Six Amendment Rights, prejudice is presumed.

Supporting Facts

          During Petitioner’s second trial of 2014, the solicitor presented a mass amount of photographs of spent shell casings, bullet fragments, pictures of bloodstains, live bullets, a 345 piece exhibit of photographs that took three days to place into evidence, and presented testimony from officers who collected the evidence, and expert testimony as to this evidence. These exhibits and testimony from (witnesses/officers/experts) who collected this evidence had absolutely no evidentiary value which would assist the jury at arriving at the truth of the matter, created a tendency to suggest a decision on an improper basis, was a waste of time, and was not tested for DNA.

Instead of trial council objecting to presentation of these exhibits on the grounds that they were irrelevant, and the probative value of the evidence was outweighed by the unfair prejudice under SCRE 401 and 403, trial counsel just slept through three days of evidence which even the solicitor admitted in closing arguments was irrelevant, also while jurors slept and also the Judge was nodding off, and every time the solicitor placed another array of photographs into evidence, and the judge ask did trial counsel object, the judge sometimes had to ask him twice because he was asleep. See: Tr. P. 723, L23, L12 – P. 724, L1 (2014).

12. “Ladies and gentleman … 13. I know, I bored you all to 14. tears in putting all this evidence, and I apologize, but I. … 21. some of it lead 22. absolutely nowhere, just like some of those pictures that I 23. put into evidence that you are welcome to go through back. 24. there in the jury room are fuzzy. They don’t show anything of 25. any relevance, and they’re duplicates, but you’ve got them if you want to go through them.” See: also Tr. P. 720, L17 – P. 722, L1 0 17; Tr. P. 719, L2 – P. 720, L1 -6, and Tr. P. 7 – P. 20.

See PCR Transcript Desjuana Johnson P. 59, L2 – 24, Juror #189

Desjuana Johnson P. 59,, L2 – 24, Juror #189

2. Q. All right. And what, if anything, did you observe about 3. Mr. Dizzley’s attorney, Mr. Barr? 4. A. Quite a few times, it seemed like when he was supposed to 5. be giving a response …. 13. At times, sometimes his responses weren’t on the subject 14. that he was supposed to be responding to. It just seems like 15. sometimes he wasn’t attentive at times… 22. A. Oh, yeah, he like skipped back and forth on different 23. subject matter, and sometimes they had to call him back to 24. what we were supposed to be listening to.”

See: Gwendolyn B. Frasier PCR Transcript

P. 54, L23 – P. 55, L1 – 16

P. 55, L 8., “During the trial, he (Attorney Barr) acted as if he was 9. tired, he was sleepy, he was inattentive. Every time the 10. judge called him, he had to say, Mr. Barr, your witness, Mr. 11. Barr, Sir. Mr. Barr, your witness. Oh, okay. And then he 12. gets up and he does something as if, you know, and there were 13. people say they thought he was sleeping. I know he was 14. inattentive and that he … the judge had to address him at least twice before he would move when he said, your witness,”

 U.S. v. Ragin, 820 F. 3d. 609 (4th Cir. 2016), "The Six Amendment guarantees a criminal defendant the right to assistance of counsel for his defense. The U.S. Constitution Amendment VI – Although generally a defendant must show that his counsel's performance was deficient and prejudicial to prevail on a claim of ineffective assistance of counsel, See: Strickland v. Washington, 466 U. S. 668 (1984), in U. S. v. Cronic, 466 U. S. 648 (1984), The Supreme Court held that there are certain situations where the reliability of the trial becomes too questionable that the defendant need not show prejudice. Instead, prejudice is presumed. We believe that when counsel for a criminal defendant sleeps through a substantial portion of the trial, such conduct compromises the reliability of the trial, and thus no separate showing of prejudice is necessary."

 Petitioner contends that circumstances surrounding the solicitors closing comments, and testimony from Juror #189, Desjuana Johnson, and Gwendolyn Frasier at Petitioner’s PCR corroborates that trial counsel was sleeping throughout substantial portions of Petitioner’s trial and was inattentive.

 For the foregoing reasons as determined by the U.S. Supreme Court in U. S. v. Cronic, 466 U. S. 648 (1984). Petitioner is entitled to a new trial without showing actual prejudice.

GROUND 18

Prosecutorial Misconduct Naomi Alston

   Petitioner seeks to set aside a conviction of murder on the grounds that it was obtained by the knowing use of false testimony from victim's fiance, Naomi Alston.

                   Supporting Facts

 The solicitor knowingly presented false testimony from Naomi Alston, victim's fiance that Petitioner and victim had a falling out over the Cub Paradise. The solicitor knew that Alston testified under oath in Petitioner's first trial of 2012, that Petitioner and victim had not argued over Club Paradise.

Naomi Alston, cross by Defense, Trial of 2012, Tr. P. 185, L17-23

17. Q. You can’t remember, do you ever remember any

18. time that you heard them arguing?

19. A If I could remember any time they argued?

20. Q Yes, Ma, am,

21. A In person?

22. Q Yes ma’am.

23. A No, sir.

(2012) Page 187, Lines 21-24

21. Q Is it true that not one time did you ever

22. hear Aundry and Mr.Terron Dizzley arguing about

23. anything having to do with that night club?

24. A I didn’t hear them argue about the night club.

(2012 Tr. P. 157, L5-8)

5. Q Did “D” have or you or Mr. Dizzley did he have

6. any, excuse me, relationship with the club or anything

7. like that? What’s your understanding?

8. A As far as I know, no, he didn’t.

(2012) Tr. P. 180 Lines, 17-25

17. Q Did you know the nature of the relationship, business

18. relationship that Mr. Evans and Terron Dizzley have?

19. A I thought that it was just home boys, friends.

20. Q Have you ever sat down and listened to them

21. discuss the club?

22. A No Sir, I have not. Aundry did come to me and

23. said that Gerhard wanted to become partners in the

24. club, and I asked if he sure that was a good idea and I

25. told him that my name was on it I felt it was just

me and him.

          However, Alston’s testimony drastically changed during Petitioner's second trial 2014 falsely testifying:

Naomi Alston, Trial of 2014, Direct by State, Tr. P. 177, L24- p.178, L1-6-15-17

24. Q Okay. And what was the nature of their relationship?

25. A At first when – they were real close. They spoke every

1. day. Then they had a falling out and then they didn’t speak

2. for a while and then that’s when one day we was in Florence

3. and they saw each other in the mall. Me and the kids went

4. back to the hotel room, and later on he came back and got us

5. and said that we were going out to eat.

15. A Okay. He came back. We went to Outback Steakhouse, and

16. D was there, and after that they were cool, and then they had

17. another falling out behind Paradise.

(2014), Tr. P. 230, L12-P. 231, L1-10, Impeachment

Redirect, (2014), Tr. P. 232, L23-P. 233, L1-6

23, Q –What was the, what was the nature of their

24, relationship? Were they getting along? Were they not getting

25. along? Were they arguing?

1. A They weren’t getting along. They were arguing

2. Q Okay. Are you aware of the subject matter with which

3. they were arguing about?

4. A Yes, ma’am.

5. Q And what were they arguing about?

6. A Diz wanted to become partners in the club.

The solicitor deliberately compromised the integrity of the truth seeking and fact-finding process by introducing Naomi Alston’s false testimony to obtain a conviction. Not only did the solicitor present Alston’s false testimony, the solicitor failed to correct Alston’s false testimony. Alston’s false testimony created a presumption that relieved the state of proving essential elements of the crime beyond a reasonable doubt such as malice, intent, and also a false motive by knowingly presenting false testimony that victim and Petitioner “allegedly’ had a falling out behind Club Paradise. Whereas, the solicitor knew that Alston testified under oath in Petitioner's first trial that she had never heard victim and Petitioner argue over the Club Paradise. S

 This presentation of Alston’s false testimony was knowingly, deliberate, highly prejudicial, had a detrimental effect on the outcome of Petitioner's trial, and was burden shifting which then forces Petitioner to take the stand and explain or deny that he had never had any arguments with victim over the night club or any matters. Alston’s false testimony also violated Petitioner's Six Amendment right to confront victim, whereas, Alston’s false testimony is a statement testifying for the victim against Petitioner that he was arguing with Petitioner and why. The presentation of Alston’s false testimony so infected Petitioner's trial with unfairness as to deny him the right to due process, whereas, in the solicitor's closing arguments,she admitted that she knew some of her witnesses were not telling the truth, but she presented their false testimonies anyway so that the jury could hear the evidence - the good, the bad, and the ugly. However, the solicitor had no consideration or regards for how knowingly presenting this false testimony would affect Petitioner's rights.

See: (2014), Tr. P. 714 L15-22, Closing by State

15. Now, what is the evidence? Mr. Barr would have you

16. believe there’s not much. “I” called every person that was

17. there that night, the good the bad and the ugly. “I” wanted

18. each and every, everyone of you to know what each and every

19. person who may have witnessed anything having to do with this

20. saw. Some of them saw a lot. Some of them can’t remember.

21. “Some of them aren’t telling the truth.” Clearly, I didn’t tell

22. them what to say or they would have done better."

Memorandum of Law

 Due process prohibits the states “knowing use of false evidence," because such use violates “any concept of ordered liberty.” Napue v. Illinois 360 U.S. 264 269 (1959). Where a conviction is obtained by the presentation of testimony known by the prosecuting authorities to be perjured, the constitutional requirement of due process is not satisfied. Pyle v. Kansas, 317 U. S. 213, 87 L. Ed 214; Mooney v. Holohan 294 U.S. 103, 79 L Ed 91.

GROUND 19

Trial Counsel was ineffective which prejudice Petitioner by failing to object to the state's presentation of a 911 tape of December 1, 2008, on the night of the shooting, and failed to object to the solicitor's improper comments in closing arguments in reference to the 911 call and request a mistrial on the grounds that: (1) The 911 call improperly bolstered testimony of its own witnesses; (2) The 911 tape was not relevant to any issue pursuant to the crime and was used in closing arguments by the solicitor to improperly attack the credibility and character of Petitioner’s alibi witnesses. Whereas, the “only” time the defense was provided with to establish an alibi was indicated in Petitioner’s arrest warrant which is 10:30 p.m. that a crime allegedly occurred. Despite providing the state with notice of alibi, the state failed to amend Petitioner’s indictment with the time that the crime occurred upon several requests. However, The solicitor used the 911 tape in her closing argument to establish a different time that the crime occurred and alleged that it occurred at 11:30 p.m., stating that the 911 call supports these improper comments, then used these improper comments to attack Petitioner’s alibi defense, and the credibility and character of his alibi witnesses, alleging that according to the alleged time the 911 call was made, Petitioner had time to drive from Orangeburg, S.C. and commit the crime and, therefore, Petitioner’s alibi is not relevant; (3) The 911 tape’s probative value was outweighed by the danger of unfair prejudice, was misleading, confusing and a waste of time; (4) The 911 tape was not authenticated, therefore, not reliable, whereas, Petitioner has several incident reports of statements taken from witnesses at 11:20 p.m. which makes it impossible for the crime to have happened at 11:30 p.m. See: Tr. P. 315, l25 – 317, L1 – 13; closing arguments by State, Tr. P. 722, L18 – P. 723, L1 – 11. See: PCR transcript of November 28, 2018, Page 228, L2 – 19.

Supporting Facts

          Petitioner contends that the 911 tape and the solicitor’s comments in reference, thereof, was also burden shifting, which relieved the prosecution of their burden of proving essential elements of the crime beyond a reasonable doubt. In re Winship, 397 U. S. 358 (1970); Mullaney v. Wilbur, 421 U.S. 684 (1975); Patterson v. New York, 432 U.S. 197 (1977); Sandstrom v. Montana, 442 U.S. 510 (1979). Johnson v. Bennett, 393 U.S. 253 (1968), “The Supreme Court held that Iowa rule shifting to defendant the burden of proving an alibi defense violates the due process clause of the Fourteenth Amendment." Graves v. U.S., 150 U.S. 118 (1893), “The failure of a person on trial for murder to have his wife in court, in order to afford witnesses an additional means of identifying him, (as alibi defense). She having been seen with him near the time and place of the murder – is not a proper subject for unfavorable comment in argument to the jury.”

Attack on Credibility and Character

 U. S. v. Scheffer, 523 U.S. 303 (1985), “Fundamental premise of criminal trial system is that the jury is the lie detector, and determination as to weight and credibility of witness’ testimony belongs to the jury." Aetna Life Insurance Company v. Ward, 140 76 (1891); Michelson v. U. S. , 335 U. S. 469 (1948); Old Chief v. U.S. , 519 U.S. 172 (1997).

 Petitioner contends that the solicitor used the 911 tape to make improper comments as to her personal opinion of Petitioner’s guilt. Berger v. U. S., 295 U.S. 78, 88 (1935), “The government may prosecute with earnest and vigor, but The Supreme Court has held that, while the prosecutor may strike hard blows, he is not at liberty to strike foul ones.” U. S. v. Young, 470 U.S. 1 (1985); U. S. v. Robinson, 485 U.S. 25 (1988); Chapman v. California, 386 U.S. 18 (1967); Griffin v. California, 380 U.S. 609 (1965).

 Petitioner contends that it is well established as determined by the U.S. Supreme Court that the government may not bolster or vouch for its own witnesses. Tome v. U.S., 513 U.S. 150 (1995). This has also been established in the Fourth Circuit. Mangal v. Warden, Perry Correctional Institution, 2019 WL 7461668; U. S. v. Sanchez, 118 F. 3d. 192 (1997); U. S. v. Lewis, 10 F. 3d. 1086 (993); U.S. v. Mitchell, 1 F. 3d 235, 240 (1993).

 Petitioner contends that trial counsel's failure to object to the state's presentation of the 911 tape of December 1, 2008 which led to solicitor's improper comments in closing arguments attacking Petitioner’s alibi witnesses’ credibility and character, such performance was deficient and fell outside the bounds of competent representation, whereas, Petitioner’s only defense was an alibi defense. Buck v. Davis, 137 S. Ct. 759 (2017); Strickland v. Washington, 466 U.S. 668 (1984). Petitioner contends that the solicitor’s use of the 911 tape to bolster their own witnesses, and make improper comments pursuant to the 911 tape of December 1, 2008, so infected Petitioner’s trial with unfairness as to deny him the right to due process. Darden v. Wainwright, 477 U.S. 168 (1986); Donnelly v. DeChristoforo, 416 U. S. 637 (1974).

GROUND 20

 Trial counsel was ineffective which prejudice Petitioner when he elicited damaging testimony from states witness Marvin Riley that he “allegedly” heard the nickname “Little D” before, which is the same nickname allegedly mentioned by victim as to who shot him, which opened the door for the solicitor to elicit further damaging testimony from Riley that he heard the nickname at the club and “assumed’ it was being referred to Petitioner. This vested the solicitor to mischaracterize Riley’s testimony in her closing arguments that Riley testified that he heard people at the club in Georgetown call Petitioner “Little D,” when the record proves that Riley testified that he heard the name and “assumed” it was being referred to Petitioner.

          Trial counsel was also ineffective which prejudice Petitioner by failing to investigate and interview Riley which would have shown that Riley heard the nickname "Little D"from investigators after the crime was committed, during his interview, and investigators kept referring to Petitioner as “Little D.” See: (Marvin Riley’s Affidavit attached). See: Tr. P.237, l25-P. 238 L1-14 (cross by defense); Tr. P. 241, L15-24; (redirect by State, Tr. P. 242, L5-19)

Supporting Facts

          The record proves that the state's entire case rested solely on an alleged hearsay statement by victim that "D" or "Little D" shot him. Trial counsel moved to exclude the hearsay statement in the grounds that the statement was hearsay, therefore, inadmissible, and the nicknames were vague and did not identify anyone and to allow the statement, and allow the state to attribute the statement to Petitioner when according to witnesses, the victim never established who this "Little D" was, would violate Petitioner's Confrontation Clause rights. Despite this, the trial judge admitted the statement.

           None the less, trial counsel elicitated hearsay testimony from Riley that he “allegedly” heard the nickname “Little D” before, which opened the door for the solicitor to elicit further damaging testimony from Riley that when he heard the nickname he “assumed” it was being referred to Petitioner. The record also shows that the solicitor made improper comments in her closing arguments mischaracterizing Riley's testimony saying that Riley testified that, "Yeah, I did hear that when I was down here at that party. People were calling him "Little D." See: (Trial of 2014), Tr. P. 724, L 11-17.

          Trial counsel's elicitation of such damaging testimony violated Petitioner’s Sixth Amendment right to cross-examine whoever Riley heard the nickname from to ascertain who they were speaking of. Such highly prejudicial testimony was “accusatory” statements against Petitioner which is exactly what the Sixth Amendment Confrontation Clause forbids. See: Crawford v. Washington, 541 U.S. 36 (2004). See: Emerson-Bey v. Attorney General of Maryland, 2017 WL 3279461, "Carl Emerson-Bey was convicted of first-degree murder....This concerned the murder of Emerson-Bey's estranged wife.... Subsequent to the murder, Phyllis Mason, also known as Leteara Thompson, was arrested on unrelated charges. During her interview with police she advised that she was getting high in the alley with a friend on the night of the murder. She said she heard gun shots and saw a man flee the home. She identified Emerson-Bey in a photo-array...Prior to trial Phyllis Mason died...There was no dispute that the identification of Emerson-Bey by Mason was inadmissible due to her death and the prosecutor agreed not to introduce same. None the less during defense counsel's (Fowley) cross-examination of lead detective Carew, he elicited testimony of the identification of his client as having fled the scene of the murder... It should have been obvious to Fowley, even though he elicited the offending testimony, that an objection based on Crawford would have been meritorious however, he made no effort to object to the testimony, to move to strike the testimony, or to move for mistrial. No advantage was gained by the defense through the admission if the testimony and as discussed above the testimony was extremely prejudicial to the defense. The court finds the state court's decision to be an unreasonable oni and will grant this petitioner's petition for writ of habeas corpus on Strickland and Crawford issues. Accordingly, petitioner's conviction and sentence are VACATED, and the case is remanded to the Circuit Court if Baltimore City for a new trial." See also: Chatmon v. U.S., 801 A. 2d 92 (2002).

  Petitioner contents that trial counsel’s elicitation of such damaging testimony relieved the state of proving essential elements of the crime which Petitioner is charged beyond a reasonable doubt, most importantly, identity. See In re Winship, 397 U.S. 338, 364 (1970); Mullaney v. Wilbur 421 U.S. 684 (1974); Patterson v. New York, 432 U.S. 510, 524 (1979).

 Petitioner contends that trial counsel’s performance was deficient and fell outside bounds of competent representation. Buck v. Davis, 137 5 Ct. 759 (2017), “Defense counsel’s performance during penalty phase of capital murder trial in presenting expert testimony that prisoner was statistically more likely to act violently in the future because he was black fell outside bounds of competent representation.” Thus, resulting in trial counsel abandoning Petitioner at a critical stage during trial. U.S. v Cronic, 466 U.S. 648 (1984).

 Trial counsel’s elicitation of such damaging testimony from Riley so infected Petitioner’s trial with unfairness as to deny Petitioner the right to due process. Donnelly v. DeChristoforo 416 U. S. 637 (1974). See: November 28, 2018 PCR Transcript Pages 166 9-P 168 L1-8.

           For the foregoing reasons Petitioner's habeas corpus should be granted and conviction and sentence vacated and he should be granted a new trial.

 GROUND 21

Elicitation of Damaging Testimony

 Trial counsel was ineffective which prejudice Petitioner by elicitating damaging hearsay testimony from Investigator Garrett in reference to trial counsel’s own damaging, highly prejudicial, improper comments which was not supported by the record and misstatement of facts.

Supporting Facts

 Trial counsel made false statements that the reason why Investigator Garrett was trying to find Petitioner was because he heard that Naomi Alston claimed that victim identified Terron Dizzley as the person who shot him? Trial counsel then followed that misstatement with a question that called for hearsay from Investigator Garrett, and persistently cross-examined Investigator Garrett on this highly prejudicial matter. See: Investigator Garrett, Trial of 22014 P. 550, L6-15

6. Q And in terms of why, you were, you were trying to find

7. Terron Dizzley. You had, you had already heard, at least,

8. that Naomi Alston claimed that Terron Dizzley, that he

9. identified Terron Dizzley as the person that shot him? You

10. knew that; right?

11. A No. What I heard (hearsay) was that he identified a person by the

12. name of “Little D” that shot him

13. Q Well, Little D but then you said that Little D you

14. wanted someone to confirm that "Little D" was Terron Dizzley?

15. That is correct.

See also: Trial of 2014, P. 544 L4-P. 545 L1-21 specifically P. 545, L19-21.

19. A “After identifying who

20. we thought “was Little D, of course, we want to try to track

21. him down and speak with him.”

 Petitioner contends that trial counsel’s improper comments were false, misstatement of facts and assisted the solicitor in prosecuting him, thus, resulting in a complete breakdown in the adversarial process. Buck v. Davis, supra, 1375 S. Ct. 759 (2017).

 Trial counsel’s elicitation of hearsay, that Investigator Garrett heard victim identified the person who shot him as “Little D” and that he wanted someone to confirm that “Little D” was Terron Dizzley, such testimony was hearsay, highly prejudicial, “accusatory” statements against Petitioner which is exactly what the Sixth Amendment Confrontation Clause forbids. See: Bruton v. United States, 391 U.S. 123 (1968); Gray v. Maryland, 523 U.S. 185 (1988); Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009); Pointer v. Texas, 380 U. S. 400 (1965); Barber v. Page, 390, S. 719 (1968); Douglas v. Alaska, 415 U.S. 308 (1974); U.S. v Owens, 484 U. S. 554 (1988).

 Such testimony so infected Petitioner’s trial with unfairness as to deny him the right to due process. Donnelly v. DeChristoforo, 416 U.S. 637 (1974); Darden v. Wainwright, 477 U.S. 168 (1986).

GROUND 22

Trial counsel was ineffective which prejudice Petitioner by his elicitation of damaging testimony from Investigator Garrett and Investigator Morris. Throughout trial counsel’s cross-examination of Investigators Garrett and Morris, trial counsel continued to refer to Petitioner as the shooter and permitted Investigator Garrett and Investigator Morris to do so also, and place Petitioner in connection with mysterious unknown associates. Investigators Garrett and Morris testimonies were highly prejudicial and were an improper attacks on Petitioner's character and his alibi witnesses character and credibility.

Supporting Facts

    Investigator Garrett

 Throughout trial counsel’s cross-examination of Investigator Garrett he continued to cross-examine him on the grounds that Petitioner must have “friends,” “buddies,” or “associates” that could help him commit the crime he was charged with and continued to refer to Petitioner as the shooter. Investigator Garrett’s response was, “I’m assuming that he does have “buddies” he can call and come help him out with something like this.” See: Tr. P. 560, L1-565, L1-21; specifically, Tr. P 562, L4-23

Investigator Morris

 Throughout trial counsel’s cross-examination of Investigator Morris, he also continued to cross-examine him on the grounds that Petitioner must have some “friends,” “buddies," or “associates” that can help Petitioner commit the crime he was charged, and continued to refer to Petitioner as the shooter and continued to allow Investigator Morris to do so also. Investigator Morris responded that Petitioner's alibi witnesses could have been in the car with him and could be covering up for him. See Tr. P. 611, L24-P. 617.

Discussion

 Trial counsel’s elicitation of this damaging testimony from Investigator Garrett and Morris, constantly making references to Petitioner as the shooter, and placing him in connection with unknown mysterious associates and allowing Investigator Garrett and Morris to do so also assisted the solicitor in prosecuting Petitioner. Also trial counsel’s elicitation of testimony from Investigator Garrett and Morris which were “vicious” attacks on Petitioner and his alibi witnesses character and credibility stating that Petitioner's ealibi witnesses could have been his accomplices, so infected Petitioner's trial with unfairness as to deny him the right to due process. Buck v. Davis, supra, 137 S. Ct. 759 (2017); U.S. v Young, 470 U.S. 1 (1985); U.S. v. Robinson, 485 U.S. 25 (1988); U.S. v. Scheffer, 523 U.S. 303 (1998); Aetna Life Insurance Co. v. Ward, 140 U. S. 76 (1891).

Improper Attack on Character

Michelson v. U.S., 335 U.S. 469 (1948); Old Chief v. U.S. 172 (1977); Greer v. U. S., supra, 245 U.S. 559 (1918); Knode v. Williamson, 84 U.S. 586 (1873).

Improper Comment on Guilt

 Petitioner contends that trial counsel repeatedly elicited testimony from Investigator Garrett and Morris and made statements himself which resulted in extreme highly prejudicial comments as to Petitioner’s guilt not supported by the record, which were improper and so infected Petitioner’s trial with unfairness as to deny him the right to due process. Chapman v. California, 386 U.S. 912 (1980); Griffin v California 380 U.S. 609 (1965); U.S. v. Robinson 485 U.S. 25 (1988); U.S. v. Young, 470 U.S. 1 (1985); Donnelly v. DeChristoforo, 416 U.S. 637 (1974); Darden v. Wainwright, 477 U.S. 168 (1986).

GROUND 23

          Trial counsel was ineffective which prejudiced Petitioner by his elicitation of and failure to object to several false statements, improper comments, insinuations, hearsay and misstatements of truth from lead Investigator Dustin Morris.

Supporting Facts

           Investigator Morris gave false statements as to the “alleged” contents of Petitioner’s alibi witnesses testimony from his first trial of 2012. Investigator Morris false statements were an attack of the credibility of Petitioner’s alibi witness, and unsupported by any evidence of record or actual testimony by his alibi witness. Furthermore, trial counsel was ineffective which prejudice Petitioner by withdrawing his objection to the state's elicitation of the same false statements he elicited. Thus, failing to preserve this issue for direct review.

 Investigator Morris testified falsely, that Petitioner’s alibi witness’s statements were not consistent, and placed him in two different locations at the time of the crime in which his was charged. (See: Tr. P. 606, L1-25 through P. 609, L1; Also see Tr. P. 609). Petitioner contends that a review of his alibi witnesses’ testimony would show that all of his alibi witnesses placed him in Orangeburg, S.C. at the time of the shooting and not in two different places. Prior to Investigator Morris' false testimony, Mr. Barr asked Investigator Morris, who was lead investigator in this case, and a witness in Petitioner's first trial of 2012, was he aware of "four alibi witnesses" that placed him in Orangeburg, S.C. at the time of the shooting. Investigator Morris denied knowing anything about "any" alibi witnesses placing Petitioner in Orangeburg at the time of the shooting. (See: Tr. P. 598, L13-25; Tr. P. 599). During proffer, Mr. Barr reminded Investigator Morris that he was in the courtroom the whole time, and was a witness in the trial of 2012 when "four alibi" witnesses placed Petitioner in Orangeburg, S.C. at the time of the shooting. (See: Tr. P. 600, L11-25). After stating that he knew nothing about "four alibi" witnesses, and after proffer, Investigator Morris now claimed he only recalled two alibi witnesses, and made several false statements that their testimony was not consistent, and placed Petitioner in two different locations at the time of the shooting. (See Tr. p. 601) However, trial counsel objected on redirect by the state to the same false, hearsay testimony of Investigator Morris that he elicited as to the “alleged”contents of Petitioner’s alibi witnesse’s testimony, (See Tr. P. 622, L1-25, p625, 626) Solicitor's response was: See Tr. P. 622, L15-16

     15. Ms. Bailey: Your Honor, Counsel Barr opened the door. He

   16. asked...

Tr. P. 625, Ln.14-22, Mr. Barr objects again.

   14. Counsel Barr: Judge, I'm going to object. This is

    15. irrelevant.

   16. Ms. Bailey: Your Honor, Mr. Barr spent a long time

    17. talking about why Mr. Morris didn't follow upon leads.

           Tr. P. 625, L22 Mr. Barr withdrew his objection.

      22. Mr. Barr: I withdraw my objection

 Trial counsel's deficient performance prejudices Petitioner by his elicitation, and failure to object to Investigator Morris’ false testimony, improperly attacking the credibility of Petitioner’s alibi witnesses. Investigator Morris false testimony clearly had an effect on the outcome of Petitioner’s trial, whereas, Petitioner’s only defense was an alibi defense.

 Investigator Morris testimony was misleading and conveyed the impression to the jury that Investigator Morris has evidence not presented to the jury, but known by the state that supports his false testimony as to the credibility of Petitioner’s alibi witness.

Buck v. Davis, supra, 137 5 Ct. 759 (2017); Graves v. U.S., 150 U.S. 118, “the failure of a person on trial for murder to have his wife in court, in order to afford witnesses an additional means of identifying him, (as alibi defense) she having been seen with him near the time and place of the murder, is not a proper subject for unfavorable comment in argument to the jury.” Johnson v. Bennett, 393 U.S. 253 (1968), “the Supreme Court held that Iowa Rule shifting to defendant the burden of proving an alibi defense violates the due process clause of the Fourteenth Amendment.”

 Petitioner contends that trial counsel knew that he had no obligation to prove his alibi, and eliciting such highly prejudicial, hearsay from Investigator Morris as to the contents of Petitioner’s alibi testimony in his first trial of 2012 was not only false but not supported by the record and improperly attacked Petitioner’s alibi witnesses character by insinuating that they were lying. Thus, relieving the state of its burden of disapproving Petitioner’s alibi. Thus, allowing the state to bolster Investigator Morris’ false, hearsay testimony improperly attacking the credibility and character of Petitioner’s alibi witnesses because trial counsel opened the door. U. S. v. Young, 470 U. S. 1 (1985); U. S. v. Scheffer 523 U. S. 303 (1998), “Fundamental premise of criminal trial system is that the jury is the lie detector and that determination as to weight and credibility of witness testimony belongs to jury.”Aetna Life Ins. Co. V. Ward, 140 U. S. 76 (1891).

 Greer v. U.S. 245 U.S. 559 (1918), “the character of the defendant in a criminal case, is not an issue in the case, unless the defendant choose to make it one.” Knobe v. Williams, 84 U. S. 586 (1873); Old Chief v. U. S., 519 U.S. 172 (1997); Michelson v. U. S., 335 U.S. 469 (1948) ; In re Winship, 397 U.S. 338, 364 (1970), Patterson v. New York 432 U.S. 197 (1977); Mullaney v. Wilbur, 421 U. S. 684 (1974); Sandstrom v. Montana 442 U. S. 510, 524 (1979).

 Petitioner contends that trial counsel's elicition of such damaging testimony assisted the prosecution in prosecuting him, whereas, his only defense was an alibi defense and there was no evidence of Petitioner’s guilt, and such conduct resulted in trial counsel abandoning his role as an advocate for Petitioner. See: U.S. v Cronic 466 U.S. 648 (1984).

GROUND 24

          Trial counsel was ineffective which prejudiced Petitioner by eliciting false testimony from Investigator Morris that statements, crime scene and witnesses, and people he interviewed placed Petitioner at Club Paradise the night of the shooting. Investigator Morris statements were false and unsupported by any evidence of record, violated Petitioner’s Sixth Amendment right to confront witnesses, and was burden shifting and relieved the state of their burden of proving essential elements of the crime. Tr. P. 617, L17-P. 618, L2.

Supporting Facts

 Investigator Morris statement were false, misleading and conveyed the impression to the jury that witnesses and crime scene evidence and people he interviewed placed Petitioner at Club Paradise on the night of the shooting. Such false statements violated Petitioner’s right to confront and cross-examine these witnesses. Barber v, Page 390 U.S. 719 (1968); Pointer v. Texas, 380 U. S. 400 (1965); Smith v. Illinois 390 U.S. 129 (1968); Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009); Bull coming v. New Mexico, 564 U.D. 647 (2011); Gray v. Maryland, 523 U.S. 185 (1998); Brookhart v. Janis, 384 U.S. 1 (1966); Davis v Alaska, 415 U.S. 308 (1974).

Fifth and Fourteenth Amendment Violation

 Investigator Morris false testimony that he had evidence from crime scene and witnesses that placed Petitioner at the Club Paradise on the night of crime, relieved the state of proving essential elements of the crime in which Petitioner is charged, was burden shifting, and was not harmless, whereas, Petitioner’s only defense was an alibi defense. In re Winship, 397 U.S. 338, 364 (1970); Paterson v. New York 432 U.S. 197 (1977); Mullaney v. Wilbur, 421 U.S. 684 (1974); Sandstrom v. Montana 442 U.S. 510, 524 (1979); Johnson v. Bennett 393 U.S. 253 (1968). “The Supreme Court held that Iowa rule shifting to defendant the burden of proving an alibi defense violates the due process clause of the Fourteenth Amendment.”

 Petitioner contends that trial counsel’s elicitation of such damaging testimony fell outside bound of competent representation. Buck v. Davis, 137 5 Ct. 759 (2017); U.S. v. Cronic 466 U.S. 648 (1984).

  GROUND 25

          Trial counsel was ineffective for failing to object to the solicitors elicitation of highly prejudicial hearsay testimony from Investigator Morris that through the review of generated reports from the autopsy, statements, comparing investigation notes, interviews from Ralph Frasier, (Petitioner’s stepfather), Edward Mack, Gary Gibson, Marvin Riley, and “anonymous” information, all lead him only to the name, “Little D” and at that point he had to establish who “Little D” was, and that was established at a later time through witnesses statements, violated Petitioner’s right to cross-examine witnesses, was false and unsupported by the record and so infected petitioner’s trial with unfairness as to deny him the right to due process. See: Tr. P. 584 L8-P. 585, L1-14.

Supporting Facts

 The record shows that Investigator Morris testimony was inadmissible hearsay and false. Petitioner was never identified as the perpetrator of the crime by victim or anyone, and Petitioner’s stepfather, Ralph Frasier, never gave any statements to investigators which would support Investigator Morris false statements. Diaz v. U.S., 223 U.S. 442 (1912), “Hearsay evidence admitted without objection is to be given its natural probative effect as if it were in law admissible.”

Sixth Amendment Right to Confront Witnesses

 Investigator Morris testimony as to autopsy, statements from unknown witnesses, investigative reports, notes, and “anonymous” information, deprived Petitioner of the right confront witnesses and bolstered a false identification of Petitioner as the immediate suspect by nickname. Bull Coming v. New Mexico, 564 U.S. 647 (2011),“Defendant had right to confront analyst who certified blood – alcohol analysis report, and report was testimonial within the meaning of the Confrontation Clause.” Melendez – Diaz v. Massachusetts, 557 U.S. 305 (2009), “analysts were not removed from coverage of Confrontation Clause on theory that they were not “accusatory” witnesses.” Smith v. Illinois 390 U.S. 129 (1968) “the Supreme Court held that defendant had right guaranteed to him under Sixth and Fourteenth Amendments of Constitution to cross-examine informer who was principal witness as to informer’s actual name an address.” Brookhart v. Janis, 384 U.S. 1 (1966); Barber v. Page, 390 U.S. 719 (1968); Pointer v. Texas, 380 U.S. 400 (1965); Gray v. Maryland, 523 U.S. 185 (1998)

GROUND 26

            Trial counsel was ineffective which prejudice Petitioner for failing to object to the jury instruction of “hands of one, hands of all” by withdrawing his objection, thus, failing to preserve this issue for direct appeal.

Supporting Facts

See Tr. P. 691, L16-P 694, L-9-, Tr. P 734, L15 P. 736, L1-12

 Petitioner contends that trial counsel knew that Petitioner was the only person charged in the crime of murder, and Petitioner’s case did not involve any alleged co-defendants.

 Trail counsel also knew that there was no evidence to support the jury instruction of “accomplice liability theory “hands of one, hand of all.”

 Trial counsel also knew that Petitioner was never identified by anymore as the person who shot victim, nor identified at the scene of the crime, nor in Georgetown County himself, nor with anyone else at the time of the shooting. See: Waddington v. Sarcusad, 555 U.S. 179 (2009), “The instruction must be considered in the context of the instruction as a whole and the trial record, and the pertinent question is whether the instruction by itself so infected the entire trial that resulting conviction violates due process.”

Sixth amendment Violation Confrontation Clause

 Petitioner contends that the jury instruction of accomplice liability by itself violated his Sixth Amendment right to confront these “mysterious” accomplice that were never presented in court, and never testified that Petitioner either: (1) Committed a crime; (2) intentionally, or through a common design aid, abet, or assist in the commission of a crime through some overt act. These “mysterious” accomplices do not exist. Therefore, the jury instruction by itself bears testimony on Petitioner of which he cannot cross-examine. See: Bruton v. United States, 391 U. S. 123 (1968); Gray v. Maryland, 523 U.S. 185 (1988); Gray v. Maryland, 523 U.S. 185 (1998) Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). Crawford v Washington, 541 U.S. 36 (2004); Pointer v. Texas, 380 U.S. 400 (1965); Maryland v. Craig, 497 U.S. 836 (1990); Douglas v. Alabama, 380 U.S. 419, 420 (1965), Dutton v. Evans, 400 U.S. 74 (1970), Barber v. Page, 390 U. S. 719 (1968); Davis v. Alaska, 415 U.S. 308 (1974); U.S. v Owens, 484 U.S. 554 (1988).

Fifth and Fourteen Amendment Violation

 Trial counsel's improper jury instruction of ‘hands of one, hands of all,” “accomplice liability theory” confused the jury and relieved the state of their burden of proving every element of the crime beyond a reasonable doubt, and although there was no evidence as to Petitioner's guilt, such instruction allowed the jury to convict Petitioner of crimes committed by unknown individuals.

 Petitioner contends that such jury instruction was also burden shifting, which would force Petitioner to take the stand and testify that he did not commit or aid with anyone in committing the crime in which he is charged? Inre Winship 397 U.S. 338, 364 (1970); Mullaney v. Wilbur, 421 U.S. 684 (1974); Patterson v. New York, 432 U.S. 197 (1977); Sandstrom v. Montana, 442 U.S. 510 524 (1979).

 Petitioner contends that trial counsel’s withdraw of his objection to the jury instruction “hands of one, hands of all” fell outside bounds of competent representation and so infected his trial with unfairness as to deny him the right to due process. See: November 28, 2018 PCR Transcript Page 169 L4-8.

GROUND 27

          Trial counsel was ineffective which prejudice Petitioner by failing to object the state’s presentation of a picture of a gun and failing to object to Forensics, SLED Firearms and Ballistics Expert, Frank Dan Defreese’s testimony regarding the photographs of the gun and riffle shell casings the solicitor admitted in closing arguments were not relevant. This evidence gave the jury the impression that the state had a murder weapon. Thus, confusing the jury and creating a presumption that relieved the state of proving every element of the crime beyond a reasonable doubt. The photographs along with the testimony of experts created a tendency to suggest a decision on an improper basis, was irrelevant, was not substantially necessary to show material facts of conditions, was more prejudicial than probative, and so infected Petioner’s trial with unfairness as to deny him due process. See: Tr. p. 643, L 7-20; p.628 – p.653; See closing argument; Tr. p.719, L 2- p.722, L1-17. See also testimony of Michael Thacker. Tr. p. 486 – p. 53

Supporting Facts

Relevant Evidence

U. S. v. Zayac, supra, 765 F 3d 112 (2014), “It was neither arbitrary nor irrational for a district Court to exclude, from Defendant’s trial on several counts arising from his involvement in the kidnapping, robbery, and murder of a drug dealer, a holster and magazine recovered from his accomplice’s house, on the grounds that potential for prejudice outweighed the probative value of the evidence, which, if introduced, risked leading the jury to conclude, based on speculation rather than reasoned deduction from evidence, that accomplice owned a gun and that this gun was the murder weapon; holster was empty when it was recovered, the murder weapon was not found, and forensic testing had failed to establish with precision what kind of fire arm was used to kill the dealer. “ U. S. v. Hitt, 981 F. 2d. 422 (1992)," (1) Probative value of photograph of automatic weapon allegedly owned by defendant which also depicted several other weapons owned by defendant’s roommate, was outweighed by its prejudicial effect in prosecution for possessing unregistered machine gun. (2) erroneous admission of photograph was not harmless. U. S. v. Thomas, 321 F. 3d. 627 (2003), " (1) Probative value of photograph of defendant’s tatoo of two revolvers was outweighed by its prejudicial effect; (2) Probative value of defendant’s prior convictions for weapons relative offenses was outweighed by the danger of unfair prejudice; and (3) Trial Court’s error in admitting photograph of defendant’s tatoo and evidence of defendant’s prior weapons convictions was not harmless, and thus remand for a new trial was warranted.” U. S. v. Williams, 271 F. R. D. 1 (2010), “Defendant who was charged with one count of second degree murder and two counts of witness tampering, moved in limine to exclude the video taped reenactment of the victim’s death produced for television program. The District Court, Paul L. Friedman, J., held that benefit the video tape might to the jury was greatly outweighed by its likely prejudicial impact.” Old Chief v. U.S., 519 U.S. 175 (1997); Spirit/United Management Co. v. Mendelsohn, 552 U.S. 379 (2008); Montana v. Egelhoff, 518 U.S. 37 (1996).

Burden of Proof

In re Winship, 397 U.S. 338, 364 (1970); Mullaney v. Wilbur, 421 U.S. 684 (1974); Patterson v. New York, 432 U.S. 197; Sandstrom v. Montana, 442 U.S. 510, 524 (1968).

Testimony of SLED Firearms and Ballistics Expert Frank Dan DeFreese.

          Petitioner contends that the records show that Firearms and Ballistics expert Frank Dan DeFreese’s testimony was pursuant to his presentation of a picture of a gun and his opinion that the same gun in the picture was used to commit the crime, whereas, there was no gun found or placed in evidence, and the shell casings were not tested for DNA, according to clearly established federal law as determined by the U.S. Supreme Court, under such circumstances, Firearms and Ballistics Expert, Frank Dan DeFreese’s testimony failed to meet the standards of Rules of Evidence 702. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), “general acceptance” is not necessary precondition to admissibility of scientific evidence under Federal Rules of Evidence, and; Rules assign to trial judge the task of ensuring that expert’s testimony both rests on reliable foundation and is relevant to task at hand.” Kumho Tire Co., Ltd v. Carmichael 523 U.S. 137 (1999).

 Petitioner contends that Firearms and Ballistics Expert, Frank Dan DeFreese’s testimony in no way helped the jury (trier of fact) to understand the evidence, which was inadmissible, to determine the fact at issue, which is who killed victim. Dan DeFreese’s testimony was not based on sufficient fact or data, whereas, the state failed to test any evidence for DNA, therefore, Defreese’s testimony was not reliably applied to the principles and methods to the facts of the case. Trial counsel's failure to object to the solicitor's presentation of a picture of a gun and testimony from Expert Ballistics and Firearms, Frank Dan DeFreese so infected Petitioner's trial with unfairness as to deny him the right to due process.

GROUND 28

           Trial counsel was ineffective which prejudice Petitioner by failing to object and request a mistrial as to the solicitors highly prejudicial improper comments in closing arguments in reference to Naomi Alston’s testimony as to an alleged incident on November 29, 2008 and also, a 911 tape. The solicitor gave her personal opinion that the alleged incident and false statements attributed to Petitioner was the reason Petitioner allegedly murdered Aundry Evans, Jr. The solicitor’s statements were hearsay, highly inflammatory, burden-shifting, and conveyed inferences of her personal opinion of Petitioner's guilt.

                  Supporting Facts

See: Tr. p. 715, L 14-22.

14. You also heard her testimony that as she is sitting there

15. in the rain in her car with her window cracked that Mr.

16. Dizzley, we know exactly who did this, Mr. Dizzley yelled

17. through to try to get to her boyfriend on the other end of the

18. phone and said, and excuse my language, it’s a direct quote,

19. “Tell you pussy ass boyfriend to get down here and deal with me

20. himself.” That wasn’t some mysterious person named D.

21. That was Mr. Dizzley who said that, said it to the victim two

22. days before the murder on November 29th.

          Petitioner contends that the solicitor’s comments violated his right to due process, were vicious, inflammatory and improperly stated her personal opinion of Petitioner’s guilt, was hearsay based on false statements from Naomi Alston attributed to Petitioner and was burden-shifting. Thus, forcing Petitioner to take stand and deny that he made such statements. Berger v. U.S., 295 U.S. 778, 88 (1935), “the government may prosecute with earnest and vigor. But, the Supreme Court has held that “while Prosecutor may strike hard blows, he is not at liberty to strike foul ones.” Chapman v. California, 386 U.S. 18 (1988); Griffin v. California, 380 U.S. 609 (1965); U.S. v. Young, 470 U.S. 1 (1985); U.S. v. Robinson, 485 U.S. 25 (1988);

 Solicitor’s comments were burden-shifting. In re Winship, 397 U.S. 358 (1970); Mullaney v. Wilbur, 421 U.S. 684 (1974); Patterson v. New York, 432 U.S. 197; Sandstrom v. Montana, 442 U.S. 510, 524 (1968).

 Petitioner contends that solicitor’s comments were vicious and malicious attacks on Petitioner’s character. Michelson v. U.S., supra, 335 U.S. 469 (1948); Old Chief v. U.S., 519 U.S. 172 (1997).

 Petitioner contents that the solicitor's comments of her personal opinion as to Petitioners guilt, so infected his trial with unfairness as to make the resulting conviction a denial of due process. Darden v. Wainwright, 477 U.S. 168 (1986); Donnelly v. DeChristoforo, 416 U.S. 637 (1974).

 GROUND 29

          Trial counsel was ineffective by failing to object to the solicitor’s mischaracterization of Marvin Riley’s testimony during closing arguments that Riley said, “Yeah, I did hear that when I was down here at that party. People were calling him “Little D.” See: Tr. p. 724, L 11-17; However, this was not Riley’s testimony. Riley testified that he only knew Petitioner's by the names “Shard" and "Diz." That’s all.” See: Tr. p. 238, L 13-14. Riley testified that he heard the name “Little D” and “assumed” it was being referred to Petitioner. See: Tr. p 241, L 15-21; Tr. p. 242, L 5-19.

Supporting Facts

The solicitor’s comments overstepped her bounds of the propriety and fairness which should characterize the conduct of an officer of the court in a criminal trial. Berger v. U.S. 295 U.S. 78,88 (1935); The solicitor’s comments were hearsay, misstatements of the truth and used Marvin Riley’s testimony to unlawfully pin false nicknames on Petitioner which are the same nicknames allegedly mention by victim as to who shot him. Thus, relieving the state of their burden of proving beyond a reasonable doubt the identity of the person who committed the crime. See: Winship, 397 U.S. 358 (1970); Mullaney v. Wilbur, 421 U.S. 684 (1974); Sandstrom v. Montana, 442 U.S. 510 (1979); Patterson v. New York, 432 U.S. 197 (1977).

 Petitioner contends that the solicitor’s comments so infected his trial with unfairness as to deny him the right to due process. Darden v. Wainwright, 477 U.S. 168 (1986); Donnelly v. DeChrisoforo, 416 U.S. 637 (1974).

GROUND 30

Marvin Riley

          Trial counsel failed to object to highly prejudicial hearsay, and improper comments in solicitor’s in closing arguments which were burden-shifting in reference to testimony from state’s witness Marvin Riley. See: Tr. p 716, L 2-6.

Supporting Facts

2. “Mr. Riley, Marvin Riley from Orangeburg, only

3. Knows a little bit about this, but does know is that

4. even from Mr. Dizzleys’s own mouth Mr. Dizzley was excluded

5. from the club on November 29th and that he had an altercation

6. with Naomi Alston and that she called the police…

  Petitioner contends that the solicitor’s comments were a violation of his due process rights and was hearsay, in reference to an “alleged” hearsay statement attributed to him by Marvin Riley about an “alleged” altercation with Alston on November 29, 2008 and was burden shifting. Whereas, Petitioner had no other alternative but to take the stand and explain and correct Riley’s false statements attributed to him.

Memorandum of Law

Winship, 397 U.S. 338, 364 (1970); Mullaney v. Wilbur, 421 U.S. 684 (1974); Patterson v. New York, 432 U.S. 197 (1977); Sandstrum v. Montana, 442 U.S. 510, 520 (1979).

 Petitioner contends that solicitor’s improper comments about an alleged altercation with Naomi Alston on November 29, 2008 was hearsay and used as a “prior bad act” and improperly attacked Petitioner’s character and was not harmless. Old Chief v. U.S., 519 U.S. 172 (1997); Michelson v. U.S., 335 U.S. 469 (1948).

 Petitioner contends that solicitor’s comments so infected his trial with unfairness as to deny him the right to due process. Darden v. Wainwright, 477 U.S. 168 (1986); Donnelly v. DeChristoforo, 416 U.S. 637 (1974).

GROUND 31

 Trial counsel was ineffective for failing to object to the solicitor’s improper comments during closing arguments that the victim looked into the shooter’s eyes, implying that the victim identified his shooter by the eyes. Where there was no evidence presented that the victim identified the shooter by the eyes. (See Tr. p. 725)

Supporting Facts

Berger v. U.S., 295 U.S. 78, 88 (1935), “the Supreme Court held that the Prosecutor may strike hard blows, he is not at liberty to the striking of foul ones.”

 The solicitor’s comments were not supported by the record, false and relieved the state of their burden of persuasion of proving essential elements of the crime beyond a reasonable doubt. Most importantly, identity. Winship, 397 U.S. 338, 364 (1970); Mullaney v. Wilbur, 421 U.S. 684 (1974); Paterson v. New York, 432 U.S. 197 (1977); Sandstrom v. Montana, 442 U.S. 510, 524 (1979).

 Petitioner contends that the solicitor’s comments so infected his trial with unfairness as to deny him the right to due process. Darden v. Wainwright, 477, U.S. 168 (1986); DeChristoforo, 416 U.S. 637 (1974).

GROUND 32

Trial counsel was ineffective which prejudice Petitioner by failing to object to the solicitor’s improper comments during closing arguments which was hearsay and mischaracterized the testimony of Jerilether Jones in stating that victim was “laying low” and “hiding” from Petitioner which was the reason he stayed with Jones for two days and the first day the victim came out of hiding at his girlfriend’s house is when he was murdered. See: Tr. p. 716, L 8-20; Tr. p. 250, L 5-

21. The solicitor’s improper comments violated Petitioner's Constitutional Right to confront witnesses, were hearsay, and an improper attack on Petitioner's character, and were not reasonable references to Jones’ testimony.

Statement of Facts

          The solicitor’s improper comments were hearsay and by adding the words “laying low” and “hiding” presented circumstantial evidence that further enhanced the highly prejudicial testimony of Jones and implied that the victim feared the Petitioner and being concerned for his safety was the reason he was staying with Jones, which also stated the solicitor’s personal opinion of Petitioner's guilt by stating that the first day the victim came out of hiding at his girlfriend’s house is when he was murdered. The solicitor’s improper comments as to Jerilether’s testimony improperly revealed the reason for Aundry’s (victim) state of mind that he stays at Jerilether’s house for two days was because of an “alleged” argument with “D” or “Little D” who Jerilether falsely attributes to Petitioner which was also burden shifting, which forces Petitioner to take the stand and explain that he never had an argument with victim and did not go by the nicknames “D” or “Little D” and that he did not know Ms. Jones, nor does Ms. Jones know him.

Memorandum of Law

 Shepard v. U.S., 290 U.S. 96 (1933), “Declaration of deceased that defendant, her husband, had poisoned her, held inadmissible in murder prosecution to rebut evidence of state of mind of the deceased giving plausibility to hypothesis of suicide.”

          Petitioner contends that the testimony of Jerilether Jones falsely attributing the nicknames “D” and “Little D” to him was “accusatory” and is exactly what the confrontation clause forbids. Crawford v. Washington, 541 U.S. 36 (2004); Bruton v. U.S., 391 U.S. 123 (1967); Gray v. Maryland, 523 U.S. 185 (1998); Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009); Pointer v. Texas, 3580 U.S. 400 (1965); Douglas v. Alabama, 380 U.S. 419, 420 (1965); Dutton v. Evans, 400 U.S. 74 (1970); Barber v. Page, 390 U.S. 719 (1968); U.S. v. Owens, 484 U.S. 554 (1998).

 Petitioner contends that Jones testimony in itself was highly prejudicial and inadmissible. By adding the words “laying low” and “hiding,” and using Jones’ testimony to improperly make comments as to the solicitor’s personal opinion of guilt enhanced the prejudicial effect of the hearsay statement that bolstered Jones’ testimony and clearly was not harmless. U.S. v. Young, 470 U.S. 1 (1985); U.S. v. Robinson, 485 U.S. 25 (1988); Chapman v. California, 380 U.S. 609 (1967); Griffin v. California, 380 U.S. 303 (1985); Berger v. U.S., 295 U.S. 88-89 (1935), “ the government may prosecute with earnest and vigor. But, the Supreme Court has held that, “while the prosecutor may strike hard blows, he is not a liberty to strike foul ones.”

 Solicitor’s improper comments bolstered a false identification of Petitioner and relieved the state of proving essential elements of the crime with which Petitioner was charged beyond a reasonable doubt. Winship, 397 U.S. 358 (1970); Mullaney v. Wilbur, 421 U.S. 684 (1974); Paterson v. New York, 432 U.S. 197; Sandstrom v. Montana, 442 U.S. 510, 524 (1968).

          Petitioner contends that the solicitor’s improper comments so infected his trial with unfairness as to deny him the right to due process. Donnelly v. De Christonforo, 416 U.S. 637 (1974); Darden v. Wainwright, 477 U.S. 168 (1986).

MOTION TO CORRECT FALSE PROCEDURAL HISTORY AND LAW OF CASE

Petitioner was tried in Georgetown, S.C. in August 2012 for the charge of murder. The Honorable Judge Baxley abruptly stopped deliberations after only three to four hours and stated that the prosecution “that they are unable to meet their “burden of proof” to the extent that they can bring back a unanimous verdict,” and discharged the jury, improvidently declaring a mistrial after giving a ruling that according to clearly established federal law as determined by the United States Supreme Court was an “acquittal”.

Two years later in 2014, Petitioner was tried again for the same offense in violation of the Fifth Amendment’s Double Jeopardy Clause and Petitioner was unlawfully convicted pursuant to the second trial of March 31, 2014.

Petitioner’s trial counsel timely filed a Notice of Appeal, and he was appointed Susan B. Hacket on direct appeal. On April 16, 2015, Petitioner hired attorney Jeremy A. Thompson to investigate “juror misconduct” and file a motion for new trial. Attorney Thompson then misled Petitioner that he had to substituted himself as Appellate Counsel in order to investigate this matter and file a motion for a new trial. Attorney Thompson then substituted himself as Petitioner's appellate counsel and withdrew Petitioner’s direct appeal without obtaining any transcripts, without fully investigating Petitioner’s case or advising him of the merits of his appeal or dangers of withdrawing his direct appeal as of right, and without filing an Anders Brief. Attorney Thompson filed the request to withdraw Petitioner’s direct appeal as of right on July 9, 2015 and the South Carolina Court of Appeals granted the request to withdraw direct appeal on July 16, 2015 without an Anders Brief or an independent judicial determination of appeal merit. Attorney Thompson then filed a PCR, in which Petitioner paid Attorney Thompson a total of $15,000. Attorney Thompson then abandoned Petitioner’s PCR. Petitioner has been diligently fighting for seven (9) years and counting to have his direct appeal reinstated as of right.

 In 2017, Petitioner filed a Petition of Habeas Corpus, 28 U.S.C §2254 only raising the issue to reinstate direct appeal. See: Dizzley v. Cartledge, 2017 WL 92886979.

On February 27, 2017, the U.S District Court issued a Report and Recommendation to dismiss for failure to exhaust state remedies.

On April 3, 2017, Petitioner filed objections to Report and Recommendation supporting the objections with evidence and cases which shows that the Magistrate’s Report and Recommendation Order was contrary to clear established federal law as determined by the U.S Supreme Court. To no avail.

James K. Falk

After Jeremy A. Thompson was relieved as counsel, Petitioner was appointed James K Falk. Petitioner then sent Attorney Falk evidence in which he discovered after incarcerated which was exculpatory, impeaching, and proved Prosecutorial Misconduct by knowingly presenting false testimony to obtain a conviction. Petitioner requested that Attorney Falk file a Motion for New Trial, After-Discovered Evidence pursuant to SCR Crim. P. 29(b) and also a Motion for A New Trial Brady violation. Petitioner also explain to Attorney Falk that he never had a complete Rule 5 Discovery, case file, or complete copy of his first trial transcript of his 2012 trial and requested that Attorney Falk obtain these materials.

Attorney Falk responded in a letter with misleading information that “there is no such Rule 29(b).” Petitioner wrote Attorney Falk again and provided him with the rule and he continued to mislead Petitioner that such rule does not exist. Petitioner then filed a Motion to Relieve Attorney Falk, and Attorney Falk also filed a Motion to Relieve himself as Counsel.

On February 10, 2017, at Petitioner’s first PCR, Petitioner addressed these issues to the Honorable Judge Michael G. Nettles. Petitioner’s Motion to Relieve Counsel and to proceed pro se was denied and Judge Nettle’s granted Petitioner’s request for funds to obtain discovery and granted a continuance. Although Attorney Falk did not have any of the Petitioner’s discovery, Attorney Falk, before the PCR hearing began, tried to convince Petitioner to move forward with his PCR anyway. After the PCR, Attorney Falk admitted that he had misled Petitioner, that he knew about Rule 29(b), apologized, and promised to be honest moving forward. However, Attorney Falk stopped communicating with Petitioner completely.

Attorney Falk did amend the following issues to Petitioner’s PCR as requested:

1. Ineffective assistance of Appellate Counsel Jeremy A. Thompson, P.O. Box 12891, Columbia, SC 29211. Mr. Thompson was retained to represent Applicant on his appeal from his conviction. Mr. Thompson failed to fully investigate the case and provided ineffective assistance in advising Applicant of the merits of his appeal.

2. The State failed to provide trial counsel with copies of prior recorded statements by the State’s witnesses which contradicted the witnesses’ trial testimony; and such failure to disclose was in violation of the obligation under the Brady v. Maryland.

3. Trial counsel failed to fully investigate the case and failed to interview the State’s Witnesses before trial.

 4. Applicant is in possession of newly acquired evidence that trial counsel should have used in preparing his defense; namely transcripts of statements from Willie Stanley, Larry Cooper, Douglas Morris, Sonia Jones, and Toni Jones. The information in these statements should have been used to impeach the State’s Witnesses.

On January 11, 2017, Petitioner filed a Motion for a New Trial of After-Discovered Evidence in General Sessions under a SCR Crim. P. Rule 29(b). However, Clerk of Court Alma Y. White refused to file Petitioner’s motion although Petitioner was not represented by counsel in General Sessions. Petitioner also sent a copy of this motion to the Administrative Judge, Honorable Judge Benjamin Culbertson and explained to him the circumstances. Judge Culbertson also refused to assist Petitioner in filing the motion(s) (also filed was a Motion for New Trial, Brady violation), although the evidence proved Petitioner’s innocence and Prosecutorial Misconduct, and Petitioner had constitutional right to access the courts and file motions in a court proceeding where he was not represented by counsel.

Leah B. Moody

On or about October 19, 2017, Petitioner’s mother seek representation from Leah B. Moody pursuant to Petitioner’s PCR. Leah B. Moody misled Petitioner’s mother indicating that she would charge $6,500.00 and needed the money upfront. Leah B. Moody then contacted a judge and the Attorney General by telephone without Petitioner’s knowledge or informed consent in writing and had herself illegally substituted as Petitioner’s counsel.

The first time that Petitioner spoke to Leah B. Moody was during a telephone conference and explained to her that he did not agree or give consent to her representation and that he would like her to return the $6500.00 paid to her and relieve herself of the fraudulent representation. Leah B. Moody disrespectfully refused and continued to perpetrate illegally as Petitioner’s lawyer. Petitioner filed a motion to relieve Leah B. Moody as counsel and Georgetown Clerk of Court, Alma Y. White, refused to file Petitioner’s motion, therefore, denying Petitioner access to the courts. Petitioner’s mother called Leah B. Moody in an attempt to resolve these matters, and Leah Moody became so disrespectful that Petitioner’s mother filed a complaint with the S.C. Bar Association and the Commission of Lawyers Conduct, to no avail.

Eleanor Cleary

Petitioner’s mother then sought representation from Attorney Eleanor Duffy Cleary. Petitioner’s mother explained to Eleanor Cleary what Leah B. Moody did, and previous lawyers and explained that Attorney Cleary would need to speak with Petitioner first before obtaining representation and get his informed consent in writing before substitution of counsel, to avoid any further conflicts. However, Attorney Cleary also misled Petitioner’s mother and swindled her out of $10,000.

On or about August 31, 2018, Petitioner received a letter from Eleanor Cleary whom he had never met or gave consent to representation stating that “I am happy to tell you that Judge Seals very hesitantly granted the motion to continue the case to November. Therefore, I am now your counsel, and the case will definitely be heard the week of November 26, 2018. He will not allow any more continuances or substitutions of counsel. I need you to sign the enclosed fee agreement and release for information and send it back to me as soon as possible. I will be in touch with you soon.” (See attached exhibits). Petitioner contends that he never signed the fee agreement and wrote Attorney Cleary and explained to her that he did not agree to the fraudulent representation and to return his mother’s funds.

Attorney Cleary came to visit Petitioner at Liebra Corrections and told him that he was “stuck” with her because Judge Seals would not allow any more substitutions. Petitioner explained to Attorney Cleary that this was fraud, illegal. However, Attorney Cleary refused to return the $10,000, and continued to perpetrate illegally as Petitioner’s counsel. Petitioner filed a motion to relieve Attorney Cleary and Georgetown County Clerk of Court, Alma Y. White, refused to file Petitioner’s motion, therefore, denying Petitioner access to the courts.

After obtaining this unlawful representation Attorney Cleary began to sabotage Petitioner’s case, withdrawing issues already amended and amending new issues without Petitioner’s consent, terminating subpoenas of critical witnesses (alibi witness), and withdrawing Petitioner’s issue of Ineffective Assistance of Appellate Counsel to reinstate his direct appeal.

Petitioner addressed many of these issues at his November 28, 2018, PCR hearing. Immediately after the PCR hearing, before any briefs were filed or rulings entered, Petitioner filed another motion to relieve counsel and requested for Attorney Cleary to file a motion to relieve herself from the fraudulent representation. Attorney Cleary filed a motion to be relieved as counsel on December 27, 2018, and another on June 25, 2019. However, Alma Y. White, Clerk of Court of Georgetown, again refused to file Petitioner’s motion.

Petitioner then filed a writ of mandamus in Georgetown County to relieve Attorney Cleary and again Clerk of Court, Alma Y. White, refused to file Petitioner’s motion and writ. Petitioner then filed the writ of mandamus in the S.C. Supreme Court, requesting that the Courts direct Judge Curtis to:

“protect Petitioner’s rights to be provided with an adequate and fair corrective process for hearing a determination of claims of violations of federal constitutional guarantees to challenge the unjust, unconstitutional conviction which was imposed on him. By relieving Attorney Cleary of this fraudulent representation, allowing Applicant to proceed Pro Se, amend, and brief all issues after obtaining discovery and submit evidence and affidavits, etc. to support his claims”.

Petitioner also explained in his writ of mandamus and motions to relieve counsel that any further attempts to force illegal representation upon him, and any rulings made pursuant to any issues amended and briefed by Attorney Cleary, would be “Fraud upon the Court.” Petitioner contends that the South Carolina Supreme Court intentionally and willfully turned a blind eye to the crimes that were being committed against him and issued an order stating that they did not have jurisdiction to prevent these crimes from being committed against him. This is contrary to clearly established U.S. Supreme Court law and South Carolina’s own laws under such circumstances.

On June 25, 2019, Petitioner filed a civil action against Eleanor Cleary for fraud, before any briefs were filed or any rulings were made on his PCR. The civil action was filed in the state court for fraud and legal malpractice. See C.A. No. 2019-CP-40-03442. As a result of this civil action, Eleanor Cleary filed another motion to relieve herself as counsel explaining that the courts must relieve her of Petitioner’s counsel because he had filed a civil action against her and remaining as Petitioner’s lawyer would be a conflict of interest. However, Judge Curtis forced Eleanor Cleary to illegally represent Petitioner and forced her to brief Petitioner’s issues while a civil action was pending against her and refused to accept the fact that Eleanor Cleary was never legally Petitioner’s lawyer.

On November 21, 2019, Judge Curtis issued an order denying Petitioner’s PCR. On December 9, 2019, Eleanor Cleary filed a Rule 59 (e) Motion for Reconsideration of the Denial of Post-Conviction Relief. Page 5, paragraph 7 states:

“Finally, Counsel asked this court to address the motion to be relieved in a separate order so that she would not be forced to argue it in conjunction with the strong and meritorious post-conviction relief claims that Applicant has.” However, this Court declined to do so. Counsel must, therefore, reiterate that because Applicant is currently suing counsel in Richland County Court of Common Pleas for monetary damages, for which counsel has had to retain counsel to represent her, and which is ongoing, she has a conflict of interest. This Court mistakenly asserts that only a “little more action” is required of counsel, and this is simply incorrect, as reviewing the voluminous record and lengthy motions and orders in this case is not a “little action” under any definition. It is an error to allow counsel to remain as Applicant’s counsel, against his wishes and when he retained her, under these circumstances.”

Petitioner contends that through motions to relieve counsel and this Rule 59 (e) Motion, Eleanor Cleary admitted to her fraudulent acts and that the court was in error for forcing her to represent Petitioner under such circumstances, and deprived Petitioner from being heard on his "strong meritorious issues." Judge Curtis denied Attorney Cleary’s 59 (e) motion and Eleanor Cleary filed a Notice of Appeal. Petitioner then filed a Motion for Notice of Counsel with the South Carolina Supreme Court, asking the Supreme Court to establish that Attorney Cleary was never his attorney or agent of him and that the courts must not consider Petitioner’s fraudulent PCR as the law of his case. This motion was granted by Chief Justice Beatty on April 1, 2020, acknowledging these facts and relieving Attorney Cleary of her fraudulent representation. However, the Supreme Court still attempted to obtain illegal jurisdiction over Petitioner’s case pursuant to a Notice of Appeal filed by Attorney Cleary, whom the courts knew and acknowledged pursuant to the order granting Petitioner’s Motion for Notice of Counsel, that her representation was fraudulent. However, the South Carolina Supreme Court still attempted to force Attorney Cleary’s body of work and the court’s fraudulent acts pursuant to rulings based on Attorney Cleary’s body of work as the law of Petitioner’s case.

On April 13, 2020, Petitioner filed a Motion for Relief from Judgment pursuant to SCRCP Rule 60 (b), in the Georgetown Court of Common Pleas, pursuant to Fraud Upon the Court, Motion For Immediate Release pursuant to Double Jeopardy, False Imprisonment, and After-Discovered Evidence in General Sessions. Alma White, Clerk of Court refused to file these motions although Petitioner attached the order from the Supreme Court relieving attorney Cleary of her fraudulent representation, thus denying Petitioner access to the courts again.

In December of 2019, Petitioner was able to acquire the missing portions of his first trial transcript of 2012 through Private Investigator, Bennie L. Webb which consisted of the Honorable Judge Baxley’s ruling, which was a judgment of “acquittal”.

On April 21, 2020, Petitioner filed a Motion for Immediate Release supported with facts that he was acquitted of the charges for which he was incarcerated in 2012 by Honorable Judge Michael Baxley in a trial in Georgetown County General Sessions, and that his second trial, of 2014 was illegal and, therefore, barred by the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution.

On April 27, 2020, Petitioner filed a Motion to Show Lack of Jurisdiction and Fraud Upon the Courtin the South Carolina Supreme Court, for the purpose of showing The South Carolina Supreme Court that based on the circumstances in which the Court acknowledges that Attorney Cleary was never legally Petitioner’s lawyer, that the South Carolina Supreme Court had no jurisdiction over his case, and by accepting Attorney Cleary’s Notice of Appeal on behalf of Petitioner’s case, knowing that if it came from a fraudulent, illegal representation, would be participating in the lower court’s fraudulent acts. Therefore, giving The South Carolina Supreme Court an opportunity to protect Petitioner’s rights and correct these grave errors.

However, on June 16, 2020, without any explanation supported by the law, The South Carolina Supreme Court denied these motions, thus, confirming that the Supreme Court has conspired with Eleanor Cleary, Judge Seals, Attorney General Johnny James, and Judge Curtis to commit fraud, forcing fraudulent representation on Petitioner and conspiring to sabotage Petitioner’s case to secure an unlawful conviction and false imprisonment.

United States District Court

Petitioner contends that throughout six years of attempting to appeal his unlawful conviction and despite countless Motions for Discovery including his first trial transcript of 2012, and request to paid attorneys, and court appointed attorneys, Petitioner has never had a complete Rule 5 discovery or case file.

On January 7, 2020, Petitioner filed Writ of Habeas Corpus, 28 U.S.C. 2254 in the District Court, raising Double Jeopardy and other issues of constitutional violations, including all issues of the lower court’s fraudulent acts and supported it with clearly established Federal Law as determined by the Supreme Court of the United States that under such circumstances when the lower courts impede a Petitioner from exhausting state remedies, and where a defendant is held imprisoned without any jurisdictional authority, he has the right to file a habeas corpus writ. See Terron Dizzley v. Warden Stephan, C/A No. 8:20-CV-00126-SAL. The U.S. District Court filed Petitioner’s habeas corpus on January 13, 2020.

On January 21, 2020, Petitioner amended petition pursuant to his Double Jeopardy issue.

On January 27, 2020, Petitioner filed Objections to Magistrates Report and Recommendation to no avail.

On March 28, 2020, Petitioner amended petition with a Motion for Immediate Release and Evidentiary Hearing pursuant to his Double Jeopardy issue.

 On April 13, 2020, Petitioner filed a renewed Motion for Immediate Release.

On April 28, 2020, Petitioner filed a Motion to Show Lack of Jurisdiction and Fraud Upon the Court in the lower courts.

On May 4, 2020, Petitioner amended his Motion to Show Lack of Jurisdiction and Fraud Upon the Court and filed letters requesting to know why none of his motions were being responded to by the courts.

On June 18, 2020, Petitioner filed a renewed Motion for Immediate Release Double Jeopardy and Motion for Issuance of Show Cause Order.

On June 23, 2020, Petitioner of filed an amended Motion for Issuance of Show Cause Order.

Petitioner contends that although he has a constitutional right to due process, the U.S. District Court is intentionally depriving Petitioner of accessing the Courts, and intentionally and willfully turned a blind eye to the crime committed against him of False Imprisonment.

Petitioner contends that the U.S District Court waited over a year, and on February 2, 2021, adopted the Magistrate’s Report and Recommendation from 2020 to dismiss without prejudice to exhaust state remedies. The District Court’s order failed to comply with Federal Rules of Civil Procedure, Rule 52 (a) and the District Court refused to allow Petitioner to file a 59 (e), passing these issues to the Fourth Circuit U.S. Court of Appeals. Therefore, the State of South Carolina, for eight years, and counting, has intentionally impeded Petitioner of having any state corrective process of appealing his conviction, resulting in an unjustifiable inordinate delay and false imprisonment.

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Petitioner filed a Writ of Mandamus to The United States Court of Appeals for the Fourth Circuit, in aide of its respective jurisdiction before the final order of the District Court was issued, pursuant to Immediate Release for Double Jeopardy, False Imprisonment, Lack of Trial Jurisdiction to Impose Sentence. See: No. 21-1278. When The District Court issued its final order, Petitioner filed an appeal to The United States Court of Appeals for the Fourth Circuit. See No. 21-6329. Petitioner’s Writ of Mandamus was denied on September 8, 2021, and appeal on September 20, 2021, without a ruling on the merits, and both petitions for rehearing was denied without a ruling on the merits, which violates Petitioner’s right to due process.

   United States District Court of New York

On July 20, 2022 Petitioner filed a habeas corpus in the District Court of New York raising these same issues. See Terron Dizzley v. Warden Kenneth Nelson, 22-cv-4383. According to clearly established federal law, as determined by the Supreme Court of the United States, any Federal District Court in any state has jurisdiction under the habeas corpus statute to hear and adjudicate Petitioner’s habeas corpus to be released him from being falsely imprisoned and kidnapped. See: Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973), “The Petitioner’s presence within the territorial jurisdiction of the district court is not, “ an invariable prerequisite” to the exercise of the district court jurisdiction under the federal habeas statute. Rather, because “The Writ of Habeas Corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody,” a district court acts “within its respective jurisdiction” within the meaning of ₴ 2241 as long as “the custodian can be reached by service of process”. See also. Rasul v. Bush, 542 U.S., 466 (2004).

Despite this, Petitioner's habeas corpus was dismissed for procedural reasons claiming lack of jurisidiction because Petitioner was incarcerated in South Carolina without reaching the merits of Petitioner's underlying constitutional claims, which was contrary to clearly established U.S. Supreme Court law. Petitioner filed a timely Motion to Alter, Amend, Reconsideration, which was denied without a ruling on the merits.

   United States Court of Appeals, Second Circuit

Petitioner filed a writ of mandamus in the Second Circuit in aid of appellate court's jurisidiction before any final rulings were made in the District Court. See: In re Terron Dizzley, 22-2048. Petitioner also filed a timely appeal demonstratimg any jurist of reason would find debatable that his constitutional rights were violated, and any jurists of reason would find debatable that according to Braden, supra, 410 U.S. 484 (1973), the District Court dismissal of his habeas corpus for procedural reasons for lack of jurisidiction, without reaching Petitioner's underlying constitutional claims was incorrect. See: Slack v. McDaniel, 529 U.S. 473 (2000); Miller-El Cockrell, 537 U.S. 332 (2003).

          Petitioner contends that he has been falsely imprisoned without any legal nor jurisdictional authority for nine years and counting and never had a fair hearing to appeal his unlawful conviction nor a ruling on the merits of his case from any of the courts mentioned in this petition.

Date: _______________________ Respectfully submitted,