Supreme Courl, U.S. FILED JU 252018

No, OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE

Dctv'd ô\ac.k -PETITIONER (Your Name)

vs.

S4. Vkhaei. Cr\,tC -RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

~v~e&5_cQAes C4 ecAsAlracircMdcir (NAME OF COURT THAT LAS1L 'RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

rkLvcI (Your Name)

SC.1 Atbipn 107i45 Ro&re 18' (Address)

ALbwn /. /WI75-OO2. (City, State, Zip Code)

N/A (Phone Number) I

QUESTIONS PRESENTED

Did the Third Circuit Court of Appeals commit error by denying the petitioner a Certificate of Appealability, regarding the United States Middle District Court of Pennsylvania adverse decision in denying the petitioner's Writ of Habeas Corpus as a whole?

Did the United States Middle District Court of Pennsylvania commit error by denying the petitioner's Writ of Habeas Corpus petitioner when it was abundantly crystal clear that the petitioner was unlawfully convicted by a State Court lacking jurisdiction; that the petitioner was illegally sentenced; that his defense counsel had virtually abandoned petitioner; and that his defense counsel had deliberately stipulated into , in absence of petitioner's knowledge and consent, the most damning evidence of which, in fact, did convict petitioner in violation of petitioner's civil rights guaranteed by the 51 6th 8th and 14th Amendments to the Unites Dates Constitution?

Should this entire case be remanded back to the Court for re-trial?

Can a State stand as lawful and binding, where the convicted never entered a plea to any crime, prior to commencement of proceeding/trial?

Can a State conviction stand as lawful and binding, where counsel entered upon a stipulation as to guilt, without defendant being aware of the consequences of what was transpiring, especially since it was his first involvement, or court action, as a defendant, in his entire life?

Can a State conviction stand as lawful and binding where the State's Supreme Court misapplied federal law, under the inevitable discovery doctrine, when the informant in this case was in fact acting as an agent of the State?

Can a Habeas petition be time-barred prior to any court's determination that a foundational error had taken place constituting a ?

Can a State conviction stand as lawful and binding, when a clear miscarriage of justice has occurred? LIST OF PARTIES

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

[1 All parties do not appear in the caption of the case on the cover page. A list of all parties to the proceeding in the court whose judgment is the subject of this petition is as follows: TABLE OF CONTENTS

OPINIONS BELOW . 1

JURISDICTION......

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ......

STATEMENT OF THE CASE ......

REASONS FOR GRANTING THE WRIT ......

CONCLUSION......

EXHIBITS......

INDEX TO APPENDICES

APPENDIX (A), (Al), (A2), (A3) [Order, from P.C.R.A., Commonwealth Court, September 18, 2015]

APPENDIX (B), (Bi), (132) [P.C.R.A., Lack of Jurisdiction, Superior Court, August 19, 2016]

APPENDIX (C) [Allowance of Appeal, Denied, Supreme Court, March 7, 2017]

APPENDIX (D) [Writ of Habeas Corpus, Denied, U.S. District Court, November 28, 2017]

APPENDIX (E) [C.O.A., Denied, U.S. Court of Appeals 3rd Circuit, March 13, 2018]

APPENDIX (F), (Fl) [C.O.A. Rehearing, Denied, U.S. Court of Appeals 3rd Circuit, April 27, 2018] TABLE OF AUTHORITIES CITED

CASES PAGE NUMBER

Corn. v. Blucas, Q.S. Somerset Co., Dec. Sess. 1904, No. 51 . I

Corn. v. Riqq, 2014 PA. Super. 11, 84 A.3d 1080, 1084 (PA. Super. 2014) ...... 1

Corn. v. Thompson, 328 PA. 27, 195 A. 115 (PA. Supreme 1937) ...... 3

Johnson v. The People, 22 lii. 314 ...... 1

Yundtv. The People ...... 1

Murry v. Carrier, 106 S.Ct. 2369 (1986) ...... 4

STATUTES AND RULES

2 Ency. P1. and Prac. 770 1 Bishop's New Crim. Procedure 437, Sub. Sec. 733 1 WH. Crim. P1. and Prac. (9t11 Ed.), 289 Sub. Sec. 409 1 PA.R.App.Proc. 1114 4 PA.R.Crim.Proc., 590 (A), (1), (2); (B), (1), Pleas and Plea Agreements [See, Reason for Granting the petition, pg 5] 5

OTHER: N/A IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

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

OPINIONS BELOW

[ ] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix to the petition and is [I reported at ; or, [] has been designated for publication but is not yet reported; or, [1 is unpublished.

The opinion of the United States district court appears at Appendix to the petition and is [1 reported at ; or, [] has been designated for publication but is not yet reported; or, Ellis unpublished.

For cases from state courts:

The opinion of the highest state court to review the merits appears at Appendix (C) to the petition and is [ ] reported at ; or, [ ] has been designated for publication but is not yet reported; or, [1 is unpublished.

The opinion of the Pe.1ms\/ Van court appears at Appendix C to the petition and is [ ] reported at ; or, [] has been designated for publication but is not yet reported; or, R"is unpublished.

1. JURISDICTION

[ ] For cases from federal courts:

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

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

[ ] A timely petition for rehearing was denied by the United States Court of Appeals on the following date: , and a copy of the order denying rehearing appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted to and including (date) on ______(date) in Application No. A______

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

[VI' For cases from state courts:

The date on which the highest state court decided my case was PCLtC'\ I 20 tb. A copy of that decision appears at Appendix (E)

[VI' A timely petition for rehearing was thereafter denied on the following date: 2.7, 2.0 I , and a copy of the order denying rehearing appears at Appendix (),(i)

[] An extension of time to file the petition for a writ of certiorari was granted to and including t\I/A (date) on (date) in Application No.

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The record shows that the trial proceeded without the entry of a plea, without a plea there is no issue, and without an issue there can bee no valid trial, there being nothing to try. (2 Ency. P1. & Prac, 770).

A failure of the record to show a plea is a Fatal Defect. (Bishop's New Crim. Procedure, 437, Sub. Sec. 733)

It is of courts, useless to speculate now as to the cause of the omission, we are controlled by the record. (Wrt. Crim. Fl. and Prac. (9th Ed.) 289 Sub. Sec. 409)

STATUTES

2 Ency. P1. and Prac. 770 [See, reasons for Granting the petition, pg 1]

Bishop's New Crim. Procedure 437, Sub. Sec. 733 [See, reasons for Granting the petition, pg 1]

WH. Crim. P1. and Prac. (9th Ed.), 289 Sub. Sec. 409 [See, Reason for Granting the petition, pg. 1]

PA.R.Crim.Proc., 590 (A), (1), (2); (B), (1), Pleas and Plea Agreements. [See, Reason for Granting the petition, pg 5] STATEMENT OF THE CASE

On 9-1-2008, petitioner's daughter and boyfriend were camping out at petitioner's home. She entered petitioner's home and without permission, accessed petitioner's computer, and discovered child pornography. She then notified the Pennsylvania State Police. On 9-2-2008, petitioner was arrested at his home and his computer seized by said police authorities, and criminally charged with possession of child pornography, and taken to Centre County Prison. A Preliminary Hearing was scheduled for September 2008. However, due to a "faulty" warrant, these offenses were dismissed before the hearing took place. Nevertheless, he was still held at Centre County Prison. Then, petitioner's daughter (Jennifer Hollenback) found a video containing child pornography and as a result of this, on 9-6-2008, a second (2nd) warrant was issued to seize the video. Petitioner had been arrested on this second warrant while at Centre County Prison. A Preliminary Hearing was scheduled and during this hearing all offenses were held over for the Trial Court.

In December of 2008, petitioner was subsequently criminally charged with - Rape (2-cts), Involuntary Deviate Sexual Intercourse (2-cts), Aggravated Indecent Assault of a Child (2-Cts), Indecent Assault (2-cts), Incest (2-cts), Endangering the Welfare of a Child (2-cts), Photography, videotaping, Depicting on a Computer, or Filming Sexual Acts (4-cts), and Possession of Child Pornography (4-cts). This case was docketed in Centre County Court of Pennsylvania at number: #CP-14-CR-221 8 of 2008.

Petitioner retained private counsel, George E. Lepley, Esquire, to represent him upon the matter at trial. Counsel moved for a Suppresion hearing, which was held on 3-31- 2009. However, this hearing was continued for 4-16-2009. Due to this hearing, some criminal offenses were dismissed, while the vast majority of others were held over for trial (*)

Petitioner's attorney and the Assistant District Attorney, Yvette Wilson, were working together in the nature of a "Stipulation" to evidence agreement in the absence of petitioner's knowledge and consent. In reality, petitioner sought a bench trial and waived a trial by jury. He intended to plead not guilty, which is in writing, signed by petitioner and his attorney, dated 12-16-2008. Petitioner was never asked how he pleaded by the judge, additionally he was not provided any necessary colloquy by the trial judge, Bradley P. Lundsford. Instead, defense counsel entered upon a plea agreement under the guise of a "Stipulation", of which was virtually a guilty plea and foreclosed petitioner's case as this stipulation had foregone any attempt of petitioner to defend himself against said charges.

(*) Defense counsel appealed the Court's decision to hold over various criminal offenses to the Middle District Superior Court of Pennsylvania at docket number: # 719 MDA 2010, but the appeal was dismissed since defense counsel failed to file an Appellate Brief. The problem was that petitioner could not financially afford to pay his attorney, and the Office of the Centre County Public Defender began legally representing petitioner post-conviction.

I On 10-19-2009, a Bench Trial was held with Judge Lundsford presiding. Petitioner was found guilty that very day of all charges. On 3-26-2010, petitioner was sentenced to 40 years to 80 years, but was later re-sentenced to 38 years to 76 years of incarceration. Defense counsel filed a Notice of Appeal on 10-4-2011. The Middle District Superior Court of Pennsylvania docketed this case at Number: # 1636 MDA 2010. However, on 10-14-2011, said Appellate Court affirmed the conviction/sentences. A timely Petition for Allowance of Appeal was filed in the middle District Supreme Court of Pennsylvania at docket number: #853 MAL 2011. On 9-17-2012, said Court refused to hear the matter thus affirming the /sentences.

On 2-17-2015, petitioner filed his first and only petition for Post-Conviction Collateral Relief, "PCRA", pursuant to 42 PA.C.S.A. §9545. On 2-25-2015, Ronald S. McGlaghlin, Esquire was appointed to represent petitioner upon the matter. Petitioner conceded that his petition was "facially untimely" and he indicated within said petition that it wasn't until he learned of the case cited as Alleyne V. United States, 122 S.Ct. 2151 (2013), on 2-4-2015, which was posted and highlighted on the bulletin board just outside of the law clinic at the State Correctional Institution at Albion, that he stood to be exempt from being "time-barred" in filing a PCRA petition under his circumstances. This in and of itself, is precisely what initiated petitioner in filing the PCRA petition. The PCRA Court however, held that due to the fact that a PCRA must be filed within one (1) year from the date a judgment becomes final and that only three (3) exceptions exist to the PCRA timeliness requirement (*), the petitioner's reason for the belated PCRA petition did not fit the prescribed criteria of 42 PA.C.S.A. §9545 (b)(1)(i-iii), and on 9-18-2015, petitioner's PCRA petition was summarily dismissed. A timely pro se appeal followed to the Middle District Superior Court of Pennsylvania, and was docketed at number: #1816 MDA 2015. However, on 8-19-2016, the Superior Court AFFIRMED the dismissal of said appeal. On 9-13-2016, petitioner filed a timely Petition for Allowance of Appeal with the Middle District Supreme of Pennsylvania and was docketed at number: #655 MAL 2016. However, this Court REFUSED to hear the matter, thus denying all such relief. On 4-15-2017, petitioner filed a Writ of Habeas Corpus pursuant to 28 U.S.C. §2254, in the U.S. Middle District Court of Pennsylvania, and was docketed at number: #1-17- cv-00721. On 11-28-2017, the Court DISMISSED said Writ of Habeas Corpus petition, and DENIED petitioner a Certificate of Appealability (COA). On 21-1-2017, petitioner filed a Notice of Appeal (since he sought a COA), with the U.S. 3rd Circuit Court of Appeals at docket number: #17-3694. This was denied on 3-13-2018. Petitioner moved for a rehearing in same Court on 4020-2018, of which, said Court DENIED this on 4-27- 2018. This matter is now ripe for redress with the United States Supreme Court.

(*) (1) Interference by government officials in the presentation of the claim,- Newly discovered facts, and; An after-recognized constitutional right. 2 REASONS FOR GRANTING THE PETITION

In this instant matter, at no time prior to the commencement of the state's case in chief, was a plea ever solicited from the defendant/appellant, nor is a plea of record.

On 30 Sept. 1905, the record in a court case showed that the trial in that case was proceeded with, without the entry of a plea. It was held "in every criminal case there must be a plea to the indictment entered by, or for the accused, since without a plea there is no issue, and without an issue there can be no valid trial, there being nothing to try." 2 Ency. P1. and Prac. 770 "without a plea there can be no valid trial. It is so even though the defendant went voluntarily and without objection to trial, knowing there was no plea": Bishop's New Crim. Procedure, 437 sub. Sec. 733. "And a failure of the record to show a plea is a fatal defect": WH. Crim. P1. and Prac. (9th Ed.) 289 sub sec. 409. It is of course, useless to speculate now as to the cause of this omission. We are controlled by the record. Commonwealth v. Blucas, Q.S. Somerset, Co. Dec. Sess. 1904, No. 51 (PCRA N.T. pp. 18-LL 1-6).

Your Appellant read into the PCRA record, the very fact that the plea was never taken at trial. PCRA counsel argued that what Appellant was addressing was not a part of the record, and the PCRA Judge admonished counsel and ruled that it was a part of the record. Yet, after this hearing, this PCRA Judge was removed from the case without explanation, to this date. The Superior Court ignored this defect upon denovo review. Commonwealth v. Riqg, 2014 PA. Super. 11, 84, A.3d 1080, 1084 (PA. Super. 2014) (citation omitted). (PCRA N.T. pp. 19 LL. 17-18).

Another case in which a trial was had, 'when, in fact no plea of any kind was ever filed in the cause, so far as this record discloses", warranted reversal. Yundt v. The People, March Term 1870 (Illinois) citing authority of Johnson v. The People, 22 III., 314." It was there held that, without an issue, there could be nothing to try, and the party convicted could not be properly sentenced. This error can be corrected, and the accused can be arraigned and required to plead before he is, again, placed on trial again." Id. 1 In view of the errors that appear in this record, it was incumbent upon the state's attorney to ensure the plea process occurred. A substantial compliance with the forms prescribed by state and federal law cannot be dispensed with. It is error to omit them, and is reversible error no matter how guilty the party charged may appear to be.

Because no plea appears of record in the trial in this case, and without looking at the evidence, what so ever, it is irrelevant, the Supreme Court is compelled to vacate the judgment of conviction and the Appellant must stand un-convicted, to pled anew, or stand trial consistent with the law.

During the course of the PCRA Hearing, Judge Pamela Ruest permitted Appellant to argue his motion, (counter motion) to dismiss for Want of Jurisdiction. (N.T. pp. 14 LL. 3-11) and in which The Commonwealth's objection is duly noted. (N.T. pp. 14 LL. 13-22)

At which point from Appellant's concluding at (N.T. pp. 19), his attorney attempted to advise him that his arguments will not be part of the record, and the court made a ruling that "his argument will be part of the record." (N.T. pp. 19 LL. 17-18) and at the conclusion of PCRA Hearing counsel advises Appellant (N.T. pp. 30-31), "Mr. Hollenback, I will let you know Judge's decision, if she denies, or if she grants the Motion to Dismiss. That means we're done in the Court of Common Pleas, but you have an ab- solute right to direct Appeals to the Superior Court, which I'm assuming your're going to tell me to file, and I will file an Appeal".

From that point, since Judge Ruest was considering a jurisdictional argument, ab initio, as a plea had never been taken prior to commencement with these criminal proceedings, the court was correct by entering upon the record, Appellant's counter motion claim for Want of Jurisdiction, and the Superior Court erred in its denovo review of the record by not recognizing Appellant's Want of Jurisdiction claim, under the Law of Land doctrine, or Supremacy Clause. What instead occurred, was the

2 removal of Judge Pamela Ruest without any mention in the docket, opinion, or otherwise: as to why she was abruptly removed during her own deliberations over this case. The prejudice is self-evident. Habeas relief will otherwise be granted, and state jeopardy barring retrial applies.

Moreover, "while statutory and decisional authority permits substitution to take place in a criminal case subsequent to the receipt of the for the purpose of hearing motions and passing , in the absence of any likelihood of prejudice to the defendant, however, the practice of substituting judges to hear motions for a new trial, suspending or imposing sentence should be confined solely to the cases of necessity. The parties to the litigation, which includes the Commonwealth, ordinarily possess an undoubted right to have the judge, who heard the evidence and witnessed all that took place in the courtroom, help to decide the motion, pass judgment, ;suspend or impose sentence. The sentencing, or suspension thereof, of a person convicted of a crime is a judicial act of serious import in the administration of justice, and can only be performed by the judge who tries the case, except in cases of imperative necessity". Corn. v. Thompson, infra. (PA. Supreme Ct. 1937).

"After the imposition of sentence by the court the prisoner becomes a charge upon the state and enters its custody. In on event should a substitution or replacement after verdict ever be permitted except under unavoidable circumstances, such as sickness, {1 95 A. 1181 impossibility to act, or other substantial cause which would make the continuance of the trial judge's presence impossible". Corn. v. Thompson, 328 PA. 27,195 A115; 1937 PA. Lexis 605; 114 A.L.R. 432 (PA. Supreme Ct. 1937).

As this was a Motion to Dismiss, Appellant argued a Counter Motion to Dismiss, for Want of Jurisdiction, ab initio, nothing at all to be considered as waivable, or de- faulted under ineffective counsel as inferred by PCRA counsel, and not that his trial amounted to a guilty plea, but that no plea was ever recorded, and the conviction must be vacated. 3 Judge Grine issued the order in this case, for which Judge Ruest was in fact and law, considering Appellant's jurisdictional argument. (PCRA N.T. pp 27-28). There is nothing in the opinion issued, despite Judge Ruest ruling Appellant's claim would be of record, and counsel's arguing in conclusion for said issue, although not on point, it was deliberative, and inexcusable. This court must not dignify such acts. A trial was had, and defendant never entered a plea.

Appellant entered the courtroom, sat down and trial commenced without ever entering a plea to any offense charged; was subsequently found guilty; and sentenced thereafter. Several appeals followed, and no one found the defect until now. Based upon the record, this conviction cannot stand. PCRA judge was deliberating want of jurisdiction claim, ab initio, but was erroneously removed.

At no time was a plea entered upon the record, prior to the commencement of the alleged trial, thus, nullifying the judgment of conviction, ab initio, and the PCRA Court permitted Motion to Dismiss on Jurisdictional grounds to be entered upon the record but no ruling was ever had as the judge was removed, was it error to remove during deliberation, and not vacate of lack of plea?

This foundational error constitutes a void judgment, and all courts merely time- barred said collateral processes despite the convictions illegality and its unconstitutionality, constituting a gross Miscarriage of Justice, which no civilized society can tolerate. Murry v. Carrier, 106 S.Ct. 2369 (1968).

This Honorable Court reserves the right to hear this Appeal, pursuant to PA.R.A.P. 1114. And, due to the compelling nature of the issue at hand, this Appeal will most likely be accepted/heard on the single issue raised, pro Se.

In Corn. V. Blucas, 15 Dist. 82 Phila, Quarter Sessions (1905), States where the record shows that the trial proceeded without the entry of a plea by defendant, Judgment will be arrested. When counsel from both sides entered into a plea agreement (Stipulation), which amounted to a guilty plea, they must state, on record in open court, in the presence of the defendant the terms of the agreement, (Stipulation), this was done without the knowledge and consent of the defendant and was not part of the record. (PA.R.Crim.Proc, 590 (A),(1),(2); (B),(1). Pleas and Plea Agreements).

The Statute of Limitations is irrelevant in this instant in this instant matter, is the Commonwealth's deliberate hijack/lynching of Judicial Process and Due Process Rights of the petitioner, for the sole purpose of securing petitioner's conviction.

With all due respect to the Court, it is unconscionable that the State Judicial Process has been so manipulated by the Centre County District Attorney's office, that the principles of equity must apply, to correct the blatant Miscarriage of Justice that has occurred.

For these reasons, judgment on the pleadings are ripe for review, and petitioner prays the Great Writ issue, without day.

5 CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Date: Mme 2-5, 2QLa