Fails
By: Michael Keeling, CV 0908
SCI-Dallas
1000 Follies Road
Dallas, PA 18612
[Michael Keeling, a legally
astute prisoner, has composed a compelling account. In detail,
he explains many of the failing of Pennsylvania's flawed criminal
appeal procedures. Mr. Keeling also explains his need for an
attorney to represent his future struggle.
In Pennsylvania after a suspect is convicted - usually railroaded - he or she supposedly has access to the so-called Post-Conviction Relief Act. It pretends to give convicted persons the justice they failed to get in the trial court. In reality, the "PCRA", as it's called, has very little substance and almost never actually gives anyone "relief." We urge you to read Mr. Keeling's treaties and to actively support his effort for fredom. (Editor)] Post Conviction Relief Act Nullified Due Process and is Inadequate as a Corrective Process I'm an Africal-American man, born 15 August 1960. I've been incarcerated for 13 years, serving a 32.5 to 65 year sentence. I've continually struggled for my freedom. To date there's about $10,000 in my legal defense fund. I seek further legal assistance in the form of financial contributions and/or counsel/paralegal assistance. I acknowledge that I'm an experienced paralegal myself. I've filed numerous documents in both state and federal courts. I even have experience with civil litigation. Obviously, I'm attempting to regain my freedom while also exposing the shortcomings of Pennsylvania's post-conviction legal procedures. I was never afforded due process of law. With proper professional assistance, I would like to present the "wanton" disregard for basic Constitutional rights by the courts of both Philadelphia and Montgomery counties in Pennsylvania. If I'm able to obtain real professional assistance, the details of the case will serve as an explanation. They show an unambiguous miscarriage of justice. I've exhausted procedural appeals, namely: direct appeal, PCRA, federal habeas corpus through the Third Circuit to the US Supreme Court and a federal Rule 60(b) action. I didn't receive even one evidentiary hearing on the merits. Because of the failure of the courts to afford me real due process, I'm preparing what can technically be seen as a successive PCRA application alleging governmental interference. In 2006 I briefly retained a lawyer for $9,000. She compromised my second PCRA petition by filing a Hazel/Atlas motion against my will. I immediately fired her for breach of contract. There's a malpractice suit pending to recover the $9,000. I'm prepared to prove that the original direct appeal was clearly compromised and that the PCRA stage didn't act as a "safety valve" to correct Constitutional wrongs. The PCRA Unit and the appellate courts reviewed my appears without having critical transcripts. It's important to explain my arrest in order to understand the circumstances of the case. I've never received a hearing to record this evidence. At about noon on 18 November 1994 I was simply sitting on private property steps, reading a newspaper. I was approached by a pair of undercover police in an unmarked police vehicle. They immediately ordered me to "stand up!" They then frisked me. The actions clearly triggered protection under Pennsylvania law, Commonwealth v Bosurgi, 190 A2d 304, 311 (1963). After the frisk I was ordered into their vehicle supposedly to view composite drawings, Commonwealth v Lovett, 450 A2d 975, 978 (1994). After I'd viewed numerous sketches, the police started questioning me attempting to elicit an incriminating response under Rhode Island v Innis, 100 sct 1682, 1689-90 (1980). They asked me for my personal information, name, Social Security number and so forth. I gave them the name Richard Brown, SS# 125-55-6109, an alias being used as I was a fugitive from New York state. I also gave them my address which I'd also obtained under the alias. Allegedly, these police were investigating nighttime robberies/carjackings, the most recent one, two weeks prior to my stop and frisk. After this lengthy questioning, the sergeant decided to run an NCIC check based on the information I'd given. With me in the car, they drove approximately 75 yards to a public phone booth. They called-in my name and Social Security number. The police officer is on record saying the information, "came back negative," no warrants for the name. By law, once the information was verified, I should have been permitted to move about my normal business under Florida v Royer, 103 sct 1319, 1326 (1983). The Third Circuit has also spoken on the issue to the effect that where there are no outstanding warrants, there is no probable cause, United States v Forst, 999 F2d 737, 739 (3rd Cir 1993). The police still decided to take me to the district station. They ordered me out of their vehicle to conduct a secondary (Terry stop) search. Once the officer felt a weapon (a gun) he immediately screamed "he's got a gun!" His partner immediately started firing at me. Both officers fired a total of 15 rounds. While I was running, my gun fell to the ground accidentally discharging once. I was approximately 15-20 feet away from the police. I stopped after running a few more yard. I was able to return for the gun because the police drove away chasing me in the wrong direction. I was able to jump into a bystander's car. Without using or showing the gun, I drove away. Nobody was injured. I was caught 5-7 miles away. The police also used the information from the Terry stop at least 9 hours later to enter my apartment at 900 Spencer Street, Apartment 305. Clearly, there were no exigent circumstances. The actual arrest occurred about 1 PM. The police entered the apartment without a warrant about 9 PM. They had plenty of time to obtain a valid search warrant under United States v Singer, 879 F2d 1203, 1205 (3rd Cir 1988). My trial lawyer never filed for suppression of the illegal police photograph of me shown to the apartment complex landlord, nor did she seek suppression of the weapon or other evidence taken during the illegal entry. The legal factors I presented to trial counsel warranted her filing suppression based on no reasonable suspicion to stop me, United States v Cortez, 101 sct 694 (1981). In addition, there was grounds based on the Terry stop, a frisk for crimes committed two weeks earlier, Pennsylvania v Mimms, 98 sct 330, 335 (1977). I've adequately preserved proof of my zealousness while clearly exercising diligence under Gonzoles v Crosby, 125 sct 2641, 2652 (2005). It's obvious that my direct appeal rights were compromised. I was appointed counsel from the same public defenders office which represented me at trial. It is undisputed that my trial and appeal counsel were colleagues. The record reflects that my appeal counsel intentionally ignored meritorious issues and raised only two claims; (1) excessive sentence and (2) jury discrimination. The public defenders' "Golden Rule" of appeal is that they may not argue a colleague's performance. The practice violates clear stare decisis as in Commonwealth v Ciptak, 665 A2d 1161, 1162 (1995) and a litany of other precedents such as Commonwealth v Green, 709 A2d 383, 384 (1998), Commonwealth v Boyer, 444 A2d 709, 710 (1982), with reprimand language by the Supreme Court in Commonwealth v Growther, 361 A2d 861 (1976): "[w]e have remarked before that appointment of counsel from the same office as preceding counsel whose effectiveness is, or as in this case, may be an issue is poor practice." I've preserved this argument, presenting it to all courts at my first opportunity, but received total judicial nullification. It's obvious that appellate counsel failed to challenge trial counsel's effectiveness by intentionally raising only two non-performance claims. These trial performance claims should have been raised at the first opportunity in the first PCRA:
In federal court I raised the issue that Pennsylvania's Post- Conviction Act was ineffective as a corrective process. It failed to correct the matters cause by conflict of interest, Cuyler v Sullivan, 100 sct 1708, 1713 (1980). My legal theory is that in the interest of justice and to avoid a miscarriage of justice, I technically warrant reinstatement of my direct appeal rights because of the appointment of counsel from the same agency. The PCRA court also ignored well settled law in pure nullification of my due process rights. Because of representation by the Philadelphia Public Defenders office and other issues, I should receive assistance to file a successive PCRA. There is no doubt that my case required a suppression hearing in state court. They failed to do so during my first PCRA application. I was denied a full and fair opportunity to litigate my Fourth Amendment claim due to the ineffectiveness of trial and appeal counsel. Refer to the language in Commonwealth v Arch, 654 A2d 1141, 1145 (1995) and also Commonwealth v Kilgore, 719 A2d 754, 757 (1998) with mandatory language, "defense counsel's failure to raise and preserve defendant's state Constitutional claim challenging search constitutes ineffective assistance," ibid, 757. My lawyer never sought a suppression hearing of the gun she pled me guilty of, see Commonwealth v Nelson, 574 A2d 1107, 1114 (1990). In the PCRA appeal to the Superior Court, 481 EDA 2000, the court conceded that trial counsel "abandoned" her suppression motion in essence agreeing that I never had a hearing to determine the legality of my arrest and searches. No civilized society can or should tolerate a total nullification of Fourth Amendment rights and Article I, Section 8 rights under the Pennsylvania Constitution. The proper remedy for such deprivation is restoration of the right after the stare decisis of Kimmelman v Morison, 106 sct 2574 (1987), see also Townsend v Sain, 372 US 293, 309 (1963). I have standing under the "interest of justice" doctrine to obtain a second or successive PCRA. The state nullified well established federal law, 28 USC 2254(d)(1), Hackett v Price, 381 F3d 281, 286 (3rd Cir 204). Stone v Powell, 425 US 465, 466 (1976) teaches "[w]here the state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal relief." The state is depriving me Fourth Amendment right. It is undisputed that I never received a hearing in Pennsylvania. The Superior Court is on record conceding that they reviewed my appeal without having a full set of transcripts. They were not supplied by the PCRA court in 2000. The lack of a full transcript warrants restoration of my appeal rights because of governmental interference. The appellate court had a duty to remand my case to the PCRA court for factual determination on the merits, Commonwealth v Scott, 419 A2d 558 (1979). The trial court and PCRA court are obliged to transmit a complete record to the appellate court, PaRAP 1926. I've preserved a letter I wrote to the Superior Court via certified mail inquiring what part of the records were missing since the court had sent a directive to the lower court ordering the records. The Superior Court ruled on my appeal without critical transcripts. That had an accumulative effect since normally, an appellate court needs the complete transcripts of the preliminary hearing in order to have a complete picture of the probable cause for arrest under Article I, Section 8 of the Pennsylvania Constitution, Commonwealth v Foster, 369 A2d 875 (1977), Commonwealth v Jackson, 506 A2d 885, 887 (1986). Where transcripts or an equivalent full picture was not available, petitioner would be granted a new trial under Commonwealth v Shield, 383 A2d 844 (1978). I've raised the colrable claim of "cause and prejudice," Keeney v Tamayo-Reyes, 112 sct 1715, 1719 (1992) because of the lack of a set of complete records, Commonwealth v Warren, 399 A2d 772 (1979). I was not awarded a remand which constitutes an error that no civilized society can tolerate, Commonwealth v Szuchon, 633 A2d 1098 (1993). That's government interference meriting a new PCRA hearing. It's no secret that 95% of the time attorneys appointed to represent PCRA cases erroneously use the Finely letter, Commonwealth v Finely, 550 A2d 213 (1988), to avoid the obligating cause by the rotation of appointments to represent indigent clients. The lawyers submit the letters routinely regardless of the merits of the individual case. My case is a prime example of the misapplication of the Finley letter. I raised the above 9 issues in my first PCRA and have documented proof that my appointed counsel, Michael Davis, filed his Finley letter before he ever received my documents! Equally, the PCRA court shouldn't have granted Finley
while failing to apply the standards of Commonwealth v
white, 674 A2d 253, 255 (1996). Erroneously granting my first
PCRA lawyer the Finley excuse, interfered with establishing
the merits of my Fourth Amendment claim. In all, I'm entitled
to reinstatement of my direct appeal and/or my PCRA rights.
For Filing Successive PCRA Everyone interested in helping me to file a successive PCRA may do so in any of a number of ways
Please write to me at the byline address at the beginning of the article, or to me through:
Thank you all.
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