UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT, TERRON GERHARD DIZZLEY V. WARDEN WILLIAM LANGDON/TONYA JAMES,  CASE NO. 23-7312, CONSPIRACY TO KIDNAPPING/ FALSE IMPRISONMENT, CONSPIRACY TO VIOLATE CIVIL RIGHTS 

Note: Since 2020, Terron Gerhard Dizzley has been appealing his unlawful conviction to the U.S. Court of Appeals, For the Fourth Circuit, pursuant to an illegal sentence imposed on him in violation of the Fifth Amendment’s Double Jeopardy Clause. The aboved appeal is pursuant to Terron's second petition for habeas corpus filed for immediate release from being held illegally incarcerated for ten years and counting, which the courts have been refusing to adjudicate on the merits, thus turning a "blind eye" to Terron's illegal incarceration. 

On May 21, 2024, while being illegally incarcerated at Allendale Correctional Institution, Terron was assaulted while in handcuffs by Correctional Officers Lt. Taylor Hampton, Hughes, Dunbar, Kearse, and pepper sprayed by Associate Warden Shawanda Washington, and placed in solitary confinement in retaliation for filing civil actions against Warden William Langdon and the South Carolina Department of Corrections for false imprisonment. Terron remained in solitary confinement for sixty days without any medical treatment and was then shipped to Kershaw Correctional Institution. During this time the aboved appeal for Terron's immediate release was pending in the U.S. Court of Appeals, For The Fourth Circuit. 

While in solitary confinement at Allendale Correctional Institution, Terron received an order from the U.S. Court of Appeals, For The Fourth Circuit, denying his appeal without even ruling on the merits. Terron then filed a "Motion For Extention of Time and Motion For Stay," explaining what had occurred and that: 1. under such  circumstances he had no legal material to file a "Petition for Rehearing and Rehearing En Banc," and 2. because of the injuries he suffered both physically and mentally, he was not competent to file the petition for rehearing and requested that the court hold his case in abeyance until he was released from solitary confinement. 

On August 2, 2024, Terron was shipped to Kershaw Correctional Institution. Terron then filed the petition for rehearing and explained that he was released from solitary confinement and was now at Kershaw Correctional Institution. Terron then received an order from the Court of Appeals dismissing his petition for rehearing alleging that it was not filed on time, totally disregarding Terron' "Motion For Extention of Time and Motion For Stay."

On September 11, 2024, Terron filed a "Motion To Reinstate Petition For Rehearing and Rehearing En Banc," explaining that: 1. because he filed a "Motion For Extention of Time and Motion For Stay, " and the court never addressed the motion, his petition for rehearing was not untimely; and 2. most importantly, according to clearly established United States Supreme Court laws, and Fourth Circuit's own laws, a petition for habeas corpus filed for the purpose of release from an illegal incarceration cannot be denied or delayed, and, moreover, cannot be denied for procedural or jurisdictional reasons, such as, not being filed on time (which is what was alleged, but was not the case.), default, etc.

On October 10, 2024, the U.S. Court of Appeals, Fourth Circuit issued an order granting Terron's "Motion To Reinstate Petition For Rehearing and Rehearing En Banc," which states: "The Court grants the motion to reconsider its order denying the petition for rehearing and rehearing en banc as untimely under Local Rule 40(c). The petition is deemed timely filed "and will be considered on the merits." In a separate order stated: "This court's mandate issued 08/12/2024, is recalled for the limited purpose of considering a timely petition for panel and/or en banc rehearing."

On October 28, 2024, Terron refiled his "Motion For Issuance Of Show Cause Order As To Why The Court Refuses To Adjudicate Petitioner’s Collateral Order Double Jeopardy, Null and Void Indictment" and an "Affidavit Of Violations Of Constitutional Rights, Imminent Danger." According to clearly established United Supreme Court Laws, and Fourth Circuit's own laws, under the "Collateral Order Doctrine, " Double Jeopardy issues are "finally determined claims of rights separable from, and collateral to, rights asserted on the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." See Abney v. United States, 431 U.S. 651, 659-60 (1997). Despite this, and, despite the fact that Terron had filed this motion three times pursuant to this case, and has been raising his double jeopardy issues since 2020, the U.S. Court of Appeals refuses to adjudicate his case on the merits.

Although, the U.S. Court of Appeals, For The Fourth Circuit issued an order on October 10, 2024, granting Terron's "Motion To Reinstate Petition For Rehearing and Rehearing En Banc," and ensured Terron that the court’s would rule on the merits of his case. However, on November 21, 2024, Terron received an order from the U.S. Court of Appeals, For The Fourth Circuit, dated November 13, 2024 denying Terron's petition for rehearing and rehearing en banc and collateral order, again, without ruling on the merits, stating: "The Court denies the petition for rehearing and rehearing en banc and the motion to show cause. No judge requested a poll under Fed. R. App. P. 35 on the petition for rehearing. Entered at the direction of the panel: Judge Richardson,  Judge Quattlebaum, and Senior Judge Traxler. For the Court /s/ Nwamaka Anowi, Clerk."  This order was not a ruling on the merits of Terron's case, was not signed by any of the judges named, and is simply a "cut and paste" order issued by the clerk of court, which not only violated Terron's Fourteenth Amendment rights to due process and equal protection of laws, but, resulted in the continued illegal incarceration of Terron. This is the same "cut and paste" order the U.S. Court of Appeals, For The Fourth Circuit has been using to deny Terron's appeals for release from an indisputable illegal incarceration since 2020.

On November 5, 2023, Pro Publica wrote a news article about a scandal in the Fifth Circuit Judiciary in the Louisiana appellate court. The article brings to light that years ago, all-white judges of a Louisiana appellate court decided in secret, to systematically ingnore petitions filed by prisoners, most of them Black, who claimed they had been unjustly convicted, and filed petitions themselves because they could not afford a lawyer. Thousands of prisoners who filed petitions in the Fifth Circuit challenging their convictions would receive rejections in just a week after filing them. The denial-a single sentence that didn't address any of their claims-bore the names of three judges. The prisoners knew something was wrong. "How could they return the ruling so quickly? Why was it so vague?" The answer to those questions would come years later, in a suicide note of a high-level court employee who disclosed that the judges of the Fifth Circuit, led by Chief Judge Edward Dufresne Jr. drew up 15 rulings for his assistants to "cut and paste;" they were typically no longer than one or two sentences and ambiguous enough to fit a wide range of claims. Dufresne instructed his assistants that any prisoner who did not have a lawyer and was Black, that their case was not worth reading, and to issue one of these "cut and paste" orders simply denying them. Pro Publica described the Fifth Circuit Judiciary as a "criminal justice system still functioning in the shadow of slavery and Jim Crow."

This is exactly what has been happening to me in the lower courts of South Carolina, the U.S. District Court of Greenville S.C., and the U.S. Court of Appeals, For the Fourth Circuit. Each time I filed a pro se habeas corpus, although I raised issues of unlawful restaint of personal liberty, and actual innocence, supported with facts, evidence, and clearly established federal law as determined by the U.S. Supreme Court, and had exhausted all state remedies "made available" to me, the courts has consistently issued the basic "cut and paste" defenses to a civil action, such as "failure to exhaust state remedies," and "time barred," without ruling on the merits of my case, or, the courts would simply fabricate a false procedural history of my case, and create false narratives of my arguments and make rulings pursuant these false narratives, and supporting these rulings with case law that is contrary to the law of my case and has nothing to do with my case. Every time I filed objections, or a motion to alter, amend, correct, and reconsider, the courts would simply affirm the previous ruling without ruling on the merits of my case. Every time I appealed to the U.S. Court of Appeals, For the Fourth Circuit, I would receive a one sentence "cut and paste" ruling indicating denied, without ruling on the merits of my case. I have unlawfully languished in the South Carolina Dep't of Corrections for  ten years and counting without any legal nor jurisdictional authority, and was unconstitutionally deprived of my direct appeal and PCR, and yet the District Court of Greenville has consistently turned a "blind eye" to these facts, and has consistently deprived me of my right to obtain my freedom by use of habeas corpus, which is the sole purpose of the great writ of habeas corpus. The Fourth Circuit's Judiciary is exactly how Pro Publica described the Fifth Circuit Judiciary, "a criminal justice system still functioning in the shadow of slavery and Jim Crow."

UNITED STATES COURT  OF APPEALS FOR THE FOURTH CIRCUIT 

Terron Gerhard Dizzley v. Warden William Langdon/Tonya James C/A No. 23-7312

Motion For Issuance Of Show Cause Order As To Why The Court Refuses To Adjudicate Petitioner’s Collateral Order Double Jeopardy, Null and Void Indictment, (Filed October 28, 2024).

Petitioner contends that the record proves that he is literally being held unlawfully incarcerated for ten years and counting, pursuant an illegal sentence imposed on him without jurisdiction in violation of the Fifth Amendment Double Jeopardy Clause, of which the state had no jurisdiction to prosecute him for pursuant to an indictment that was null and void, which also violated his Fifth Amendment rights not to be held to answer for an infamous crime without presentment or indictment by a grand jury.            

According to this Fourth Circuit’s own laws, and clearly established federal law as determined by the United States Supreme Court, Petitioner’s double jeopardy issues and his issue pursuant to his indictment are collateral to, rights asserted in his habeas corpus, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated. Therefore, this court has jurisdiction pursuant to the collateral-order exception to final-judgment doctrine to review Petitioner’s double jeopardy issues de novo.

 United States v. Jones, 858 F.3d 221 (2017 4th Cir.), “The Court of Appeals has jurisdiction over the appeal of the denial of double jeopardy grounds pursuant to the collateral order exception to the final-judgment.”

United States v. Johnson, 13 F.4th 348 (2021 4th Cir.), “We review de novo a district court’s denial of a claim of double jeopardy. United States v. Jefferson, 546 F.3d 399, 308 (4th Cir. 2008) (recognizing that “the rights that have been deemed sufficient for a collateral-order appeal in a criminal proceeding include the right not to be placed in double jeopardy” (citing Abney v. United States, 431 U.S. 651, 659-60 (1997)) see also Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 441, 546 (1949) (limiting jurisdiction under the collateral order doctrine to a “small class of decisions which finally determine claims of right separable from, and collateral to, rights asserted on the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated”).”

U.S. v. Ford, 703 F.3d 708 (2013 4th Cir.), “The Court of Appeals reviews de novo whether a defendant will be subject to double jeopardy by retrial on a criminal charge.”

U.S. v. Streett, 32 Fed. Appx. 120 (2001 4th Cir.), “The Court of Appeals reviews denovo the legal questions raised by double jeopardy claims.” In support of this holding in Abney v. U.S., 431 U.S. 651 (1977), the Supreme Court explained that the double jeopardy claim made in that case challenging a retrial in the indictment “contested the very authority of the Government to hale the petitioner into court to face trial on the charge against him.”

Petitioner contends that this is exactly what he is challenging pursuant to his double jeopardy issues and his indictment issue, the very authority of the Georgetown County Solicitor’s Office to hale him into court to face trial for a first and second time in 2012 and 2014 on the charge against him pursuant to an indictment that was null and void, and especially after the trial judge discharged his jury in his first trial of 2012 on the grounds that the prosecution failed to meet their “burden of proof” to convict him for the charge of murder.

On September 11, 2024, Petitioner filed a third Collateral Order regarding his rights to be immediately released from being held illegally and the Court has not responded. Petitioner request that this Court issues an order explaing why it keeps turning a “blind eye” to his illegal incarceration pursuant to the collateral orders filed.

STATEMENT OF ISSUES

ARGUMENT AND AUTHORITIES

DOUBLE JEOPARDY

Standard for Evaluating Judgments of Acquittals for Purposes of

Double Jeopardy

          The controlling U.S. Supreme Court cases which establishes the standard that "must" be followed by a reviewing court when evaluating a judge's ruling to determine whether it is a judgment of acquittal are:

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

Evans v. Michigan, 568 U.S. 313 (2013), “Labels do not control the analysis of whether a decision dismissing a criminal case bars retrial under double jeopardy clause, rather the substance of the court decision does. The U.S. Supreme Court, Justice Sotomayor, held that midtrial directed verdict and dismissal, based on trial court’s erroneous requirement of an extra element for the charge offence, was “acquittal” for double jeopardy purposes. An acquittal for double jeopardy purposes includes a ruling by the court that the evidence is insufficient to convict, a factual finding that necessarily establishes the criminal culpability, and other rulings which relates to the ultimate question of guilt or innocence. Most relevant here, an “acquittal encompasses any ruling that the prosecution’s proof is insufficient to establish criminal liability for an offence. Here we know that trial court acquitted Evans, not because it incanted the word, “acquit” (which it did not) but because it acted on its view that the prosecution had failed to prove its case.” Quoting U. S. v. Martin Linen Supply Co., 430 U.S. 564 (1977)." See Burks v. United States, 437 U.S. 1 (1978); Hudson v. Louisiana, 450 U.S. 40 (1981).

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

The U.S. Supreme Court case which establishes the standard that "must" be followed by a reviewing court for distinguishing between a mistrial and a judgment of acquittal for purposes of double jeopardy is,

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

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

          A ruling from a judge declaring a mistrial, sua sponte, without the defendant's consent, does not automatically take away the defendant's rights under the Double Jeopardy Clause, and allow the State to retry the case. The controlling cases which set forth the standard that "must" be applied when determining whether a retrial following a ruling declaring a mistrial would violate a defendants Fifth Amendment rights under the Double Jeopardy Clause, establishes that, such rulings "must" be evaluated pursuant to the "manifest necessity" test. See: U.S. v. Perez, 22 U.S. 579 (1824); U.S. v. Jorn, 400 U.S. 470 (1971): United States v. Sanford, 429 U.S. 14 (1976).

GROUND 1

JUDGMENT OF ACQUITTAL, DOUBLE JEOPARDY

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

Statement of Facts

         It has been established by the Supreme Court of the United States for over "one hundred and fifty (150) years" that a sentence imposed on a person which violates the Fifth Amendment Double Jeopardy Clause is "void for want of power" to hold the party a prisoner and he must be discharged. See:

Exparte Lange, 85 U.S. 163 (1873), "A second judgment of the same verdict is, under such circumstances, "void for want of power," and holds no authority to hold the party a prisoner, and he must be discharged."

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

         On August 30, 2012, after only three to four hours of deliberations, the Honorable Judge Baxley received a note from the jury that they were unable to reach a decision. Judge Baxley then spontaneously declared a mistrial, after stating the following:

 See: Transcript of 2012 trial ( by Court Reporter, Grace Hurley). Ruling of the Honorable Judge Michael Baxley. Pages 314, L. 1 – 18 through Pages 315, L.1 – 8:

                      “....I’ve received a message that tells me that the jury is still deadlocked and unable to reach a decision in this case and I want to, first of all, tell you one or two things that I have on my mind and heart about this matter. First of all, I don’t want you to think in any way that your exercise as jurors have been a failure on your part because you could not reach a verdict. That’s not a failure on your part. That really the strength of our system because we bring diverse citizens from different backgrounds all from the same community to hear a set of facts and make a decision to whether or not in criminal court a person is guilty or innocent.

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

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

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

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

        It has been established by the U.S. Supreme Court for over "forty-five (45) years," in Burks v. U.S., 437 U.S. 1 (1978), that such rulings as Judge Baxley's, in Petitioner's first trial, discharging his jury on the grounds that the prosecution failed to meet their "burden of proof" was an acquittal which established his "innocence" and "lack of criminal culpability" to have committed the offense charged, and by declaring a mistrial and affording the prosecution another opportunity to try Petitioner again for the same offense after finding that the prosecution failed to meet their "burden of proof" to convict him, violated his Fifth Amendment rights under the Double Jeopardy Clause. Burks, overruled prior decisions in Bryan v. U.S., 338 U.S. 552 (1960); Yates v. U.S., 354 U.S. 298 (1957); and Forman v. U.S., 361 U.S. 416 (1960), which were similar to Judge Baxley's ruling in Petitioner's case. These cases established that a judge had the discretion, after establishing that the prosecution failed to meet their "burden of proof," or that there was "insufficient evidence" to convict, to either enter a verdict of acquittal, or order a new trial. Burks overruled these cases establishing that once a reviewing court has found that the evidence is legally insufficient, the "only" just remedy is to enter a verdict of acquittal.

See: Burks v. United States, 437 U.S. 1 (1978), "It is unquestionably true that the Court of Appeals' decision "represent[d] a resolution, correct or not, of some or all of the factual elements of the offense charged." United State v. Martin Linen Supply Co., 430 U.S. 564 (1977). By deciding that the Government had failed to come forward with sufficient "proof" of petitioner's capacity to be responsible for criminal acts, that court was clearly saying that Burks' criminal culpability had not been established. If the District Court had so held in the first instance, as the reviewing court said it should have done, a judgment of acquittal would have been entered and, of course petitioner could not be tried again for the same offense. The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. The Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient, and the “only” just remedy available for that court is the direction of a judgment of acquittal.”

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

SUBSTANCE OF TRIAL JUDGE’S STATEMENTS WAS AN ACQUITTAL

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

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

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

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

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

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

          According to clearly established United States Supreme Court law, the Honorable Judge Baxley's ruling discharging Petitioner's jury on the grounds that the state failed to meet their "burden of proof" to convict him was an acquittal despite the “label” the Honorable Judge Baxley placed on the ruling as a mistrial.

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

Mannes v. Gillespie, 967 F.2d 1310 (1992), "(1) District Court was not required to abstain from hearing habeas petition; (2) state trial judge's dismissal of murder charges in furtherance of justice based on finding that evidence at trial was insufficient to convict, was a acquittal for double jeopardy purposes; (3) and judgment of acquittal entered after deadlocked jury is dismissed terminates jeopardy and prevents retrial.

See also: Evans v. Michigan, 568 U.S. 313 (2013), “Here we know that trial court acquitted Evans, not because it incanted the word, “acquit” (which it did not) but because it acted on its view that the prosecution had failed to prove its case. Labels do not control the analysis of whether a decision dismissing a criminal case bars retrial under double jeopardy clause, rather the substance of the court decision does. The U.S. Supreme Court, Justice Sotomayor, held that midtrial directed verdict and dismissal, based on trial court’s erroneous requirement of an extra element for the charge offence, was “acquittal” for double jeopardy purposes. An acquittal for double jeopardy purposes includes a ruling by the court that the evidence is insufficient to convict, a factual finding that necessarily establishes the criminal culpability, and other rulings which relates to the ultimate question of guilt or innocence. Most relevant here, an “acquittal encompasses any ruling that the prosecution’s proof is insufficient to establish criminal liability for an offence.”

See: Lee v. U.S., 432 U.S 23 (1977). “Questions as to whether double jeopardy clause prohibits retrial after the case has been terminated, after jeopardy has attached, without a finding on the merits does not depend upon whether the court labels its action a dismissal or declaration of “mistrial” but rather whether the order contemplates an end to all prosecution of the defendant for the offense charged.” Hudson v. Louisiana, 450 U. S. 40 (1981), “Double Jeopardy principles precluded re-trial where petitioner moved for a new trial on the grounds that evidence was legally insufficient to support the verdict and trial judge granted motion on grounds that State failed to prove it’s case as a matter of law.”

          Petitioner contends that the record proves that Judge Baxley’s comments in reference to declaring a mistrial, Judge Baxley made no comments that he: (1) reconsidered his “strong message” to the prosecution that they were unable to meet the “burden of proof” to convict him. See: Smith v. Massachusetts, 543 U.S. 462 (2005); (2) Judge Baxley made no comments that his decision to declare a mistrial was pursuant to any “procedural” reasons on questions unrelated to factual “guilt” or “innocence,” that would justify declaring a mistrial.

 See: Evans v. Michigan, 568 U.S. 313 (2013), quoting U.S. v. Scott, 437 U.S. 82 (1978), “This ruling was not a dismissal on procedural grounds “unrelated to factual guilt or innocence,” like the question in Scott, but rather a determination that the State had failed to prove its case. Under our precedents, then, Evans was acquitted.”

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

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

LACK OF TRIAL COURT’S JURISDICTION TO IMPOSE SENTENCE

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

 U.S. v. Scott, 437 U.S. 82 (1978), “A judgment of a acquittal, whether based on jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict may not be appealed and terminates the prosecution when a second trial would be necessitated by reversal.”

U. S. v. Wilson, 420 U.S. 332, 95 S. Ct. 1013 (1975), “Constitutional protection against government appeals attaches only where there is a danger of subjecting the defendant to a second trial for the same offence. Provisions of the Criminal Appeals Act of 1907 that government could not have a writ of error in any case where there had been a verdict in favor of the defendant was to assure that the statute would not conflict with the principles of the double jeopardy clause.”

GROUND 2

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

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

Statement of Facts

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

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

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

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

10 but was this a jury trial?

11 MR. YARBOROUGH : It was.

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

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

14 since he was retried has filed motions over and over

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

16 try me that second time....

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

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

Page 6, L 1-6.

1 agree with you, double jeopardy.

The above ruling by Judge Culbertson is contrary to clearly established United States Supreme Court law. The U.S. Supreme Court determined in, United States v. Morrison, 429 U.S. 1, 3 (1976), "Double Jeopardy Clause treats bench and jury trials alike." The U.S. Supreme Court controlling case pursuant to “judgments of acquittals” based on "insufficient evidence to convict," is, United States v. Martin Linen Supply Co., 430 U.S. 564 (1977), which is a jury trial case. The controlling case on “judgments of acquittals” pursuant to bench trials is, Smalis v. Pennsylvania, 476 U.S. 140 (1986), and Smalis supports its decision using Martin and other jury trial cases.

See: Smalis v. Pennsylvania, 476 U.S. 140 (1986), “The Supreme Court, Justice White, held that trial judge’s ruling on defendants’ demurrer holding that Commonwealth’s evidence was insufficient to establish factual guilt was an acquittal under double jeopardy clause and barred Commonwealth’s appeal. Whether the trial is to a jury or, as here, to the bench, subjecting the defendant to post acquittal proceedings going to guilt or innocence violates The Double Jeopardy Clause."

 U. S. v. Scott, 437 U. S. 82 (1978), “A judgment of an acquittal, whether based on jury verdict of not guilty or on a ruling by the court that the evidence is insufficient may not be appealed and terminates the prosecution when a second trial would be necessitated by reversal.” Evans v. Michigan, 568 U. S. 313 (2013), “An acquittal, is unreviewable on retrial, under The Double Jeopardy Clause, whether the judge directs the jury to return a verdict of acquittal or foregoes that formality by entering a judgment of acquittal herself.”

         Therefore, according to clearly established U.S. Supreme law: (1) The Honorable Judge Culbertson’s ruling was an acquittal despite his intentional misinterpretation of the law that “judgments acquittals” pursuant to a prosecution's "failure to meet their burden of proof," or "insufficient evidence” to convict only applies to bench trials.

See: Evans v. Michigan, 568 U.S. 313 (2013), “A mistaken acquittal is an acquittal nonetheless, even if the acquittal is “based upon an egregiously erroneous foundation,” Fong Foo v. United States, 369 U.S. 141, such as an erroneous decision to exclude evidence, Sanabria v. United States, 437 U.S. 54, a mistaken understanding of what evidence would suffice to sustain a conviction, Smith v. Massachusetts, 543 U.S. 462; or a “misconstruction of the statute” defining the requirements to convict, Arizona v. Rumsey, 467 U.S. 203 (1984);

and (2) Therefore, according to clearly established U.S. Supreme Court law, the Honorable Judge Culbertson’s misinterpretation of the Fifth Amendment Double Jeopardy Clause, ruling that the Honorable Judge Baxley's ruling in Petitioner’s first trial of 2012 that the prosecution failed to meet their "burden of proof" "was" an acquittal for Double Jeopardy purposes if Petitioner’s trial was bench trial, and because Petitioner had a jury trial it was not an acquittal, was also an acquittal despite the "label" that he placed on his ruling of a “denial” of Petitioner’s "Emergency Motion For Immediate Release, Double Jeopardy, False Imprisonment, Lack of Trial Court's Jurisdiction to Impose Sentence."

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

         GROUND 3

DOUBLE JEOPARDY

“MANIFEST NECESSITY OR ENDS OF PUBLIC JUSTICE”

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

        See: U. S. v Perez, 22 U. S. 579 (1824), “Mr. Justice STORY delivered the opinion of the Court. In criminal prosecutions, courts have authority to discharge jury from giving any verdict when in their opinion taking all circumstances into consideration there was a manifest necessity for the act or the ends of public justice would be defeated. In discharging jury in criminal prosecutions, courts are to exercise sound discretion, but the power should be used with the greatest caution under urgent circumstances and for very plain and obvious causes; and in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner.” U. S. v. Jorn, 400 U.S. 470 (1971).

See: Washington v. Jarvis, 137 Fed. Appx. 543 (2005 4th Cir.), “Under Supreme Court law, a finding of “manifest necessity” must be based on the totality of the circumstances. United States v. Sanford, 429 U.S. 14 (1976). This clearly established standard generally requires an investigation of whether less drastic alternatives to mistrial are available.”

Statement of Facts

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

        On August 29, 2012, at 1:07 p.m., the jury began deliberations. Shortly after deliberations began, the jury sent a message asking to hear the testimonies of Petitioner's four alibi witnesses; the judge responded that it would take approximately an hour to set up. At 3:57 p.m., the jury entered the courtroom and listened to the witnesses’ testimonies until 4:52 p.m. and told the judge that they could not reach a verdict “that afternoon." At this point, the jury had deliberated only three hours and four minutes before entering the courtroom to listen to the testimonies of the four alibi witnesses. Instead of the trial judge giving an Allen charge and directing the jury to continue deliberations, at 5:26 p.m., the trial judge called the jury back into the courtroom and sent them home early that day, without any consideration as to

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

         The next day, August 30, 2012, jury deliberations continued at 9:42 a.m. However, instead of the jury deliberating, the jury only sent a series of notes to the judge. The first note was received at 10:03 a.m.; and a reply was sent back at 10:21 a.m. Another note was received at 11:12 a.m. that the jury could not reach a verdict, and at 11:25 a.m., the jury entered the courtroom, and the judge gave an Allen charge and sent the jury back to continue deliberations. At 12:20 p.m., the jury foreman sent another note indicating that they were still unable to reach a verdict. Trial judge then, spontaneously called the jury in court room, and in the presence of the jury, with no advance warning or notice to the defense counsel or the prosecution, declared a mistrial, stating that his decision to declare a mistrial was not based on a failure on the on jury’s part to reach a unanimous verdict, but that his decision was based on “a strong message to prosecution that they are unable to meet the burden of proof” to the extent that they could bring back a unanimous verdict."

          Petitioner contends that U. S. v. Horn, 583 F. 2d 1124 (1978 10th Cir.), is so identical to his case both legally and factually that the Equal Protection of Laws Clause under the Fourteenth Amendment requires that Petitioner is afforded the same treatment.

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.”

Petitioner contends that the record shows that there was no manifest necessity to declare a mistrial sua sponte after only three to four hours of deliberations. Whereas, (1) the trial record reflects that the trial judge, after receiving a second note from the jury, shortly after an Allen charge indicating that they were unable to agree, did not inquire whether more time would help facilitate unanimity or whether more deliberations would be beneficial to the jury. (2) The trial record does not reflect that there existed a significant risk that a verdict may have resulted from pressures inherent in the situation rather than the considered judgment of all the jurors, which would suggest; “a genuinely deadlocked” jury; (3) the trial record does not reflect that the trial judge delicately balanced Petitioner's “valued right to have his trial completed by a particular tribunal.” Benton v. Maryland, 395 U.S. 784 (1969); Wade v. Hunter, 336 U.S. 684 (1949); Illinois v. Somerville, 410 U.S. 458 (1973).

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

See: U. S. v. Jorn, 400 U.S. 470 (1971), “In finding a lack of manifest necessity, the plurality stressed that the trial judge gave absolutely “no consideration” to the alternative of trial continuance, and “indeed, acted so abruptly discharging jury” that the parties were given no opportunity to suggest the alternative of continuance or to object in advance to the discharge of the jury. The plurality concluded that where trial judge simply “made no effort to exercise sound discretion to assure that there was a manifest necessity for the sua sponte declaration of a mistrial, a re-prosecution would violate the double jeopardy provision of the Fifth Amendment.” Downum v. U. S., 372 U.S.734 (1963).

U. S. ex. rel. Webb v. Court of Common Pleas of Philadelphia County, 516 F. 2d. 1034 (1975 3rd Cir.), “Constitutional Double Jeopardy considerations precluded trial of the defendant for a third time on same charges where, after initial prosecution had resulted in hung jury, trial judge in second prosecution, after six and one-half hours of jury deliberations, raised issue of jury deadlock sua sponte and declared a mistrial because of hung jury after having interrogated only jury foreman as to state of jury’s deliberations.”

 U. S. ex. rel. Russo v. Superior Court of New Jersey, Law Division, Passaic County, 483 F. 2d 7 (1973 3rd Cir. ), “The Court of Appeals held that there was no manifest necessity to declare a mistrial after only 15 hours of deliberations on grounds that jury was too exhausted to reach an impartial verdict. Defence counsel’s failure to object to declarations of mistrial while jury was in the box after being recalled by court rather than in judge’s chambers after jury had been dismissed, did not prejudice right to challenge subsequent retrial as placing defendant in double jeopardy where defence counsel had no advance warning or notice that mistrial was to be declared and to have objected in front of the jury, might have prejudice the defendant for trying to “show up,” the trial judge, who granted mistrial on ground that jury was exhausted, especially if some members of the jury actually did want to go home despite their civil obligation.”

See also: U. S. v. Razmilovic, 507 F. 3d 130 (2007 2nd Cir.), “This case at hand calls on us to review such a ruling to determine whether it was an abuse of discretion for a trial court to decide that a single note indicating deadlock created “manifest necessity” to declare a mistrial. On the record before us, we conclude that it was. We therefore hold that retrial of defendants- appellants Michael DeGennaro and Frank Borghese would violate double jeopardy clause of the Fifth Amendment. We also must decide whether Borghese consented to the mistrial but then almost immediately changed his position. We find that Borghese did not deliberately forego his right to have his guilt determined by his original tribunal. The Court of Appeals Circuit Judge Katzmann held that (1) there was no manifest necessity to declare mistrial and (2) defendant did not move for or consent to mistrial. Reversed and Remanded.”

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

         Petitioner contends that the record shows that Judge Baxley’s sua sponte decision to declare a mistrial was not dictated by a “manifest necessity” or ends public justice” which violated his “valued right” to have his trial completed by a particular tribunal. Because jeopardy attached when the jury was sworn in, Petitioner’s second trial was barred by the Fifth Amendment Double Jeopardy Clause.

See: Arizona v. Washington, 434 U.S. 497 (1978),“Because jeopardy attaches before the judgment becomes final, the constitutional protection also embraces the defendant’s “valued right” to have his trial completed by a particular tribunal. The reasons why this “valued right” merits constitutional protection are worthy of repetition. Even if the first trial is not completed, a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolong the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted. The danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed. Consequently, as a general rule, the prosecution is entitled to one and, only one, opportunity to require an accused to stand trial.” Crist v. Bretz, 437 U. S. 28 (1978).

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

                                                  GROUND 4

IV. 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 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. 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 constitutionally deficient.

ARREST WARRANT AFFADAVIT IN GIORDENELLO v. U. S.

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

  See: Giordenello v. U. S., 357 U. S. 480 (1958), “Under Federal Rules of Criminal Procedure, complaint merely charging the concealment of heroin without knowledge of it’s illegal impartation in violation of designated statute and containing no affirmative allegations that the complaining officer spoke with personal knowledge of the matters contained therein and not indicating any sources for the officer’s belief and not setting fourth any other sufficient bases upon which a finding of probable cause could be made 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 on the grounds that they 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, 464 U.S. 897 (1984), “Deference to a magistrate in search warrant matters is not boundless and deference accorded finding of probable cause does not preclude inquiry into the knowing or reckless falsity of the affidavit on which that determination was based and a magistrate must purport to perform his neutral and detached function and not serve merely as a rubber stamp for the police. A magistrate failing to manifest 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, and Leon, the magistrate in his case, 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 record proves that he requested and had a preliminary hearing. 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 probable cause and jurisdiction, bound Petitioner’s case over to criminal court despite the fact that Petitioner was being held unlawfully.

          Therefore, as the U.S. Supreme Court established in Leon, which also applies to the magistrate at Petitioner’s preliminary hearing, who is also supposed to be neutral and detached, by “failing to manifest that neutrality and detachment demanded of a judicial officer.... cannot provide valid authorization” to bound Petitioner’s case over a criminal court for an “otherwise unconstitutional” restraint of Petitioner’s personal liberty, therefore, such order was “null and void,” and the magistrate essentially performed a prosecutorial function by serving merely as a rubber stamp for the prosecution.

See: Coolidge v. New Hampshire, 403 U.S. 443 (1971), “Warrant for search of automobile was invalid because it was not issued by a “neutral and detached magistrate” where determination of probable cause was made by 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 “nullity” 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.”

See: Fay v. Noia, 372 U.S. 391 (1963), “Habeas corpus lies to test proceedings so fundamentally lawless that imprisonment pursuant to them is not merely erroneous but is “void,” and, therefore, res judicata is inapplicable in a habeas corpus proceeding. Void judgments may be collaterally impeached.”

            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.

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.”

           Petitioner contends that his case is not like the issue in, Abney v. U.S., 431 U.S. 651 (1977), challenging the sufficiency of a “legal” indictment for failure state an offense, which was rejected as an issue that would fall within “Cohen.” Petitioner is challenging the criminal court’s jurisdiction to indict him pursuant to an order from the preliminary hearing magistrate, in which under the circumstances and according to clearly established U.S. Supreme Court law was “void,” which also makes his indictment “void.” Therefore, rather, Petitioner, “is contesting the very authority of the Government to hale him into court to face the charge against him,” which does fall within the small class of case of “Cohen.” See: Abney v. U.S., 431 U.S. 651 (1977).

Therefore, these issues, “claims rights separable from, and collateral to, rights asserted in the action, too important to be denied review, and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.”

          Petitioner contends that this motion is in no way a waiver of his other constitutional issues raised in his habeas corpus of actual innocence and ineffective assistance of counsel, and he would also like to reiterate to this court that according to clearly established federal law, Petitioner will suffer further “irreparable injury” pursuant to any denial or delays in adjudicating these issues.

          For the foregoing reasons this motion should be granted and this Court Honorable should adjudicate Petitioner’s Collateral Order on its merits promptly without waiting to adjudicate the entire Petition for Rehearing and Rehearing EN BANC.

Date:. _______________ Respectfully submitted,

                                                         S,_________________________

                                                         Terron G. Dizzley, #359480

                                                         4948 Goldmine HWY

Kershaw S.C., 29067