N0y T. FLORIDA SUPREME COURT

Transcription

1 T. FLORIDA SUPREME COURT 20 2 N0 3 9 FROViDED FOR tviâiling 2 AT CALHOUN Cl BY MICHAEL CHARLES DES'UE, Petitioner N0y *^''"T'^' vs. Case No.: SC L. T. No.: 1D ; CA KENNETH S. TUCKER, SECRETARY FLORIDA DEPARTMENT OF CORRECTIONS, AND CALHOUN CORRECTIONAL INSTITUTION WARDEN, Respondent(s) AMENDED JURISDICTIONAL BRIEF OF PETITIONER Michael Charles DeSue # Calhoun Correctional Institution S.E. Institution Drive Blountstown, FL

2 General Counsel Honorable Jennifer Parker Assistant Mrs. Barbara Debelius 501 South Calhoun Street Tallahassee, Florida CERTIFICATE OF INTEREST PERSON 1

3 TABLE OF CONTENTS CERTIFICATE OF INTEREST PERSON...i TABLE OF CONTENTS...ii TABLE OF CITATIONS...iii PRELIMINARY STATEMENT... 1 STATEMENT OF CASE AND FACTS... 1 SUMMARY ARGUMENT...4 GROUND ONE...5 DISCRETIONARY JURISDICTION REVIEW SHOULD BE ACCEPTED WHERE PETITIONER HAS BEEN DENIED ACCESS TO THE COURT TO EXPOSE HIS INJURIES AND BARBARIC CRUEL AND UNUSUAL PUNISHMENT HAS BEEN ORDERED FOR THE DEPARTMENT OF CORRECTIONS TO INFLICT UPON THE PETITIONER TO CONCEAL A MANIFEST OF INJUSTICE BY A ENTIRE COURT, THAT HARBORS BIASNESS AGAINST PETITIONER TO KEEP HIM FROM EXPOSING THEIR JUDICIAL MISCONDUCT FOR FAILURE TO ANNOUNCE A NOLLE PROSEQUI ON CASE NO.: , SO A ILLEGAL PRO SE SANCTION HAS BEEN BIASLY ISSUED TO HIDE THIS JUDICIAL MISCONDUCT...5 CONCLUSION...12 CERTIFICATE OF SERVICE...13 CERTIFICATE OF COMPLIANCE

4 TABLE OF CITATIONS Cases Baker v. State, 878 So.2d 1236, 1246 (Fla. 2004) Bounds v. Smith, 430 U.S. 817, S.Ct L.Ed. 72 (1977)... 6 DeSue v. 14th Jud. CÍT.; State, 993 So.2d 517 (Fla. 1" DCA 2008) DeSue v. State, 37 FLW D2389 (Fla. 1" DCA 2012) DeSue v. State, 638 So.2d 940 (Fla. 1" DCA 1994)... 7, 9 DeSue v. State, 65 So.3d 52 (Fla. 13' DCA 2011) DeSue v. State, 673 So.2d 31 (Fla. 13' DCA 1996)... 9 DeSue v. State, 717 So.2d 1003 (Fla. 1" DCA 1998)...9 DeSue v. State, 770 So.2d 681 (Fla. 13' DCA 2000)...9 DeSue v. State, 79 So.3d 23 (Fla. 13' DCA 2012) DeSue v. State, 798 So.2d 726 (Fla. 13' DCA 2001)...9 DeSue v. State, 799 So.2d 1027 (Fla. 1" DCA 2001)... 9 DeSue v. State, 823 So.2d 767 (Fla. 1" DCA 2002)...9 DeSue v. State, 861 So.2d 26 (Fla. 1" DCA 2003)...9 DeSue v. State, 903 So.2d 938 (Fla. 13' DCA 2005)...9 DeSue v. State, 952 So.2d 1194 (Fla. 1" DCA 2007)...9 DeSue v. State, 971 So.2d 119 (Fla. 13' DCA 2007) DeSue v. State, 975 So.2d 1136 (Fla. 1" DCA 2008)

5 DeSue v. Tucker, 79 So.3d 71 (Fla. l'' DCA 2011) Hampton v. State, 37 FLW D2173 (Fla. 13' DCA September 11, 2012)... 7 Hampton v. State, 421 So.2d 775 (Fla. 5th DCA 1992) In Re Allen, 998 So.2d (Fla. 2008)...9 In Re Doe, 973 So.2d 548, 555 (Fla. 2"d DCA 2008)...9 In Re Estate Carlton, 378 So.2d 1212, 1216 (Fla. 1979)...9 Leichtman v. Singletary, 674 So.2d 889, 891 (Fla. 4th DCA 1996) Lewis v. Casev, 518 U.S , 116 S.Ct. 2174, L.Ed.2d 606 (1996)...8 Marshall v. Jerrico Inc., 446 U.S. 238, 100 S.Ct. 1610, L.Ed.2d 182 (1980)... 8 Mims v. State, 994 So.2d 1233, (Fla. 3rd DCA 2008)... 6 Quarles v. State, 56 So.3d 857, 858 (Fla. 1 ' DCA 2011) H-Corp v. Padovano, 708 So.2d 244 (Fla. 1997)... 9 Smith v. Maschner, 899 F.2d 940, 947 (10th Cir. 1990) Solem v. Helm, 463 U.S. 277, S.Ct. 3001, 76 L.Ed.2d 637 (1983) State v. Augilar, 987 So.2d 1233, 1235 (Fla. 5'h DCA 2009)... 7 Sturdivant v. State, 2010 WL * 2 (Fla. 18' DCA 2010)... 6 Wilson v. Blankenship, 163 F.3d (11th 1V

6 U.S. CONSTITUTION Eight Amendment...4, 12 First Amendment...4, 12 Fourteenth Amendment...8 FLORIDA CONSTITUTION Art. I. Sec Article I Sec Article I Sec Article I Sec Article V Sec. 3(b) (3)...6, 12 Article V Sec. 4(a)...4, 6, 12 Article V Sec. 4 (b)(1)...4 OTHER PROVISIONS 4._79 F.S...a v

7 PRELIMINARY STATEMENT Michael Charles DeSue in the First District Court of Appeal under Case No.: 1D was the Petitioner and in the Circuit Court of Calhoun County under Case No.: Emergency Habeas Corpus release proceedings in this Jurisdictional Brief he will be referred to by his proper name or as the "Petitioner". In this Brief he will make references to District Judges Wolf, Nikki Clark, and Marstiller written opinion as "Appendix A infra" with the opinion attached. The record in Case No.: 1D of the District Court and in Case No.: CA Circuit Court of "Calhoun County" supports this Brief and if necessary this Court should order these records for a fair discretionary review determination in this case. STATEMENT OF CASE AND FACTS The Petitioner is.was currently incarcerated in Calhoun C.I. State prison on October 5, 2010 did file a Emergency Writ for Habeas Corpus for immediate release from prison under to the Circuit County of Calhoun County of the Fourteenth Judicial Circuit. The Chief Judge Hentz McClellan presided and on November 23, 2010 he found Petitioner had stated a prima facie claim for relief issuing a order for the Department of Corrections to file a response to the petition allegations. 1

8 Former Supreme Court staff attorney Mrs. Barbara Debelius filed a response being now Assistant General Counsel for DOC, and Petitioner filed a reply. The Petitioner àss October 17th 2011 learned by a "defacto" Judge Allen fegister a order had been issued on his Habeas Corpus, which Petitioner received the order dismissing his petition on October 26, 2011 that was dated for February 28, On July 25, 2012, Petitioner filed a Petition for Belated Appeal under habeas petition lower tribunal Case No.: 10:330 CA. The First District Court assigned Case No.: 1D The Petitioner filed a docket statement asserting he had previously file motions to recuse District Judges, Benton, Benton, Roberts, Hawkes, James Wolf, Nikki Clark, and Whetherell. On August 13, 2012 Assistant General Counsel Mrs. Barbara Debelius filed a propose revised order now for defacto Judge Allen Register to sign which she conceded she did not receive a copy of the Court's dismissal Order and concede Petitioner is entitled to an appeal. The Petitioner filed a objection arguing Chief Judge Hentz McClellan presided over this habeas proceeding, which "defacto Judge Allen Register should not be permitted to sign a the proposed revised order. The DCA denied the motion on October 01, 2012.

9 On August 31, 2012 the DCA entered a Show Cause Order for Petitioner to show why he should not be further pro se sanction, alleging he had been pro se sanction by the First DCA on Case No.: 1D on January 31, On September 5, 2012 Petitioner filed a response arguing a pro se sanction decision by a three (3) panel of District Judges had not be issued or published on Case No.: 1D on L.T. Case No.: On October 12, 2012 Judges James Wolf, Nikki Clark, and Marstiller entered an opinion pfö se sanctioning Pétitioner, ordering DOC ló~täke actions under F.S. disciplinary proceeding. Petitioner filed a rehearing en banc, and a motion to disqualify Judges Wolf, Clark, and Marstiller on October 17, 2012, and a motion to disqualify the entire First DCA on November 13, 2012, including filing a compliant with the Florida judicial qualification commission on grounds of unethical judicial misconduct to cover up a miscarriage of injustice. The Petitioner filed a Notice to Invoke Discretionary Review on Case No.: 1D October 12, 2012, written opinion, on October 18, 2012 and a Notice to Invoke Discretionary Review to the First DCA on October 29, The Florida Supreme Court November 13, 2012 assigned Case No.: SC and issued a order staying the proceedings until disposition of Motion for Rehearing, but did not reference to staying the proceedings on the disposition of

10 the motion to disqualify judges of the District Court. The Amended Jurisdiction Brief has been filed where the proceeding in this Court has been stayed. SUMMARY ARGUMENT I. the District Court Judges Wolf, Clark, and Marstiller has construed Petitioner's rights under Article I Sec. 1, 9, 17, 21 and Article V Sec. 4(a) & 4(b)(1) Florida Constitution and under the First, Eight, and Fourteenth Amendments to the U.S. Constitution to conceal a "miscarriage of injustice," where a nolle prosequi on Case No.: was not "announced on direct appeal in 1994 by District Judges Wolf, Barfield and Allen. Rather, they entered a per curiam affirm on L.T. Case No.: on May 27, 1994, mandated on June 14, 1994 on Case No.: , as result Petitioner has been unlawfully detained in DOC under nolle prosequi Case No.: for 21 years, which appeals has been conducted by the entire First DCA Judges who has continue to per curiam affirm L.T. Case No.: to conceal this injustice by their colleagues, "not announcing the nolle prosequi." Judges Wolf, Clark, and Marstiller in their concurrence opinion told a "untrue," that Petitioner has been "previously pro se sanction by a panel of judge," when no citation exist in the southern court reporters, and has entered a illegal sanction on these pretenses and directed DOC to take Barbaric Cruel and Unusual Punishment disciplinary actions against Petitioner by the Warden of Calhoun 4

11 Correctional Institution, when Former Staff Attorney for the Supreme Court now General Counsel Barbara Debelius knows Petitioner is unlawfully detained under nolle prosequi Case No.: , which these District Judges has biasly prevented belated appeal procedure to not allow the Circuit Court Habeas Corpus dismissal order without prejudice to be reviewed by manifesting injustice to conceal his unlawful detention. Petitioner's Liberty is being intentionally denied and his life has been placed in danger by arbitrary actioñs requiring the judicial qualification commission to investigate this unethical judicial misconduct by the First DCA judges, requiring this Court to accept discretionary review to correct this gross miscarriage of injustice. GROUND ONE DISCRETIONARY JURISDICTION REVIEW SHOULD BE ACCEPTED WHERE PETITIONER HAS BEEN DENIED ACCESS TO THE COURT TO EXPOSE HIS INJURIES AND BARBARIC CRUEL AND UNUSUAL PUNISHMENT HAS BEEN ORDERED FOR THE DEPARTMENT OF CORRECTIONS TO INFLICT UPON THE PETITIONER TO CONCEAL A MANIFEST OF INJUSTICE BY A ENTIRE COURT, THAT HARBORS BIASNESS AGAINST PETITIONER TO KEEP HIM FROM EXPOSING THEIR JUDICIAL MISCONDUCT FOR FAILURE TO ANNOUNCE A NOLLE PROSEQUI ON CASE NO.: , SO A ILLEGAL PRO SE SANCTION HAS BEEN BIASLY ISSUED TO HIDE THIS JUDICIAL MISCONDUCT.

12 Under Article V Sec. 3(b) (3) Fla. Const. gives this Court discretionary authority to accept jurisdiction, when a person State or Federal Constitutional rights has been expressly construed. The Petitioner asserts the First DCA on October 12, 2012 has construed his rights under Article I Sec. 21 Fla. Const. and under the 13' and 14th Amendments to the U.S. Constitution, that guarantee him the right to have "access to the court state and federal," when the Court pro se sanctioned the Petitioner. See Appendix A. infra (October 12, 20 T2 opiriiön); Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 52 L.Ed. 72 (1977); Mims v. State, 994 So.2d 1233, (Fla. 3"d DCA 2008); Wilson v. Blankenship, 163 F.3d 1284, 1290 (11* Cir. 1998). District Judges Wolf, Clark, and Marstiller in this opinion tells a "untrue by biasly asserting petitioner had been previously pro se sanction by a "panel of judges" on Bay County Circuit Case No.: to conduct further sanction proceedings, having the Department of Corrections to conduct disciplinary proceedings under F.S. is the very breath of "Barbaric Cruel and UnusualPunishment." Moreover to be a "decision" by the District Court requires under the Constitution of Florida to be issued by a three (3) panel of judges. See Article V Sec. 4(a) Fla. Const. Fla.R.Jud.Admin (a)(1); see Sturdivant v. State, 2010 WL * 2 (Fla. 1" DCA 2010). 6

13 The opinion does not give a citation in the Southern Court Reporters to support Judges Wolf, Clark, and Marstiller "concurrent assertion. See Appendix A infra, but see Hampton v. State, 37 FLW D2173 (Fla. 1" DCA September 11, 2012). In Hampton, Judge Wolf was on the panel with Rowe and Swanson that issued this decision of pro se sanctions reported in the Southern Court Reporters 37 FLW D2173. Indeed District Judges Wolf, Clark, and Marstiller in their opinion shöùld nõt have held Petitionér (DeSue) had beeñ previous pro se sanctiorí~by a penal of Judges. Appendix A infra (opinion). Judge Wolf, Clark, and Marstiller know L.T. Case No.: has been nolle prosequi on July 2, And that their colleagues, Wolf, Allen, and Barfield was without jurisdiction to per curiam affirm Petitioner's direct appeal Case No.: , on L.T. Case No.: , which District Judges Clark and Marstiller has assisted to conceal this injustice and this void decision rendered on May 27, 1994 mandated on June 14, DeSue v. State, 638 So.2d 940 (Fla. 1" DCA 1994); see State v. Auailar, 987 So.2d 1233, 1235 (Fla. 5th DCA 2009). Thus, Wolf, Clark, and Marstiller has expressly construed DeSue's rights to a fair and impartial tribunal of concealing this "miscarriage of injustice," rather then correcting it by intentionally denying Petitioner access to the Court to not 7

14 expose District Judges Wolf, Barfield, and Allen judicial misconduct by not "announcing that a nolle prosequi had been entered on L.T. Case No.: on direct appeal," has resulted in Petitioner being unlawfully incarcerated in DOC for 21 year under this nullity Case No.: without due process in violation of DeSue's rights under Article I Sec. 9 Florida Constitution and under the Fourteenth Amendment to the U.S. Constitution. Marshall v. Jerrico Inc., 446 U.S. 238, 100 S.Ct. 1610, 1613, 64 L.Ed.2d 182 (1980); Lewis v. Casey, 518 U.S , 116 S.Ct. 2174, , 135 L.Ed.2d 606 (1996). The interest is significant in this case, because most of the District Judges Has participated on a panel on L.T Case No.: , after the entry of the nolle prosequi on July 2, 1992, but did not announce they were without jurisdiction, which Petitioner would not receive a fair Rehearing En Banc vote consideration by the entire First DCA, so Petitioner move to disqualify the entire Court, which the District Judges are, Wolf, Barfield, Allen, Kahn, Van Northwick, Roberts, Benton, Hawkes (resigned), Polston (Chief Justice Supreme Court); Ervin, Clark, Wetherell, Lewis, Marstiller, Thomas, Padovano, Lawrence, Webster, Browning, Miner, and Davis. Aguilar, 987 So.2d District Judges Rowe and Swanson is the only District Court Judges active that has not entered a appeal ruling on L.T. Case No.: , but are colleague to those District Judges that are active that have. See In Re Doe, 973 So.2d 548, 8

15 555 (Fla. 2"d DCA 2008); 5H-Corp v. Padovano, 708 So.2d 244 (Fla. 1997); In Re Allen, 998 So.2d (Fla. 2008) (JQC disciplinary actions District Judge Allen); In Re Estate Carlton, 378 So.2d 1212, 1216 (Fla. 1979). DeSue v. State, 638 So.2d 940 (Fla. 13' DCA 1994) (L.T Judges Wolf, Barfield, Allen), DeSue v. State, 673 So.2d 31 (Fla. 13' DCA 1996) (3.850 appeal L.T Ervin, Miner, Lawrence). DeSue v. State, 717 So.2d 1003 (Fla. 1 ' DCA 1998)(3.800 a Barfield, Wolf, awrence); DeSue v. State, 770 So.2d 681 (Fla. 1" DCA 2000) (3.800 a Wolf, Barfield, Allen); DeSue v. State, 798 So.2d 726 (Fla. 1" DCA 2001) (3.800 a Miner, Wolf, Webster). DeSue v. State, 799 So.2d 1027 (Fla. 1" DCA 2001) (3.800 a Miner, Wolf, Webster); DeSue v. State, 823 So.2d 767 (Fla. 1" DCA 2002) (3.800 a Allen, Browning, Lewis); DeSue v. State, 861 So.2d 26 (Fla. l" DCA 2003) (3.800 a Wolf, Allen, Davis). DeSue v. State, 903 So.2d 938 (Fla. l ' DCA 2005) (3.800 a Padovano, Polston, Hawkes); DeSue v. State, 935 So.2d 502 (Fla. 1" DCA 2006) (3.800 a Wolf, Padovano, Thomas); DeSue v. State, 952 So.2d 1194 (Fla. 18' DCA 2007) (3.800 a Wolf, Allen, Van Northwick). 9

16 DeSue v. 14th Jud. Cir.; State, 993 So.2d 517 (Fla. 13' DCA 2008) (3.800 a Barfield, Davis, Hawkes); DeSue v. State, 971 So.2d 119 (Fla. 1" DCA 2007) (3.800 a Kahn, Webster, Roberts) DeSue v. State, 65 So.3d 52 (Fla. 1" DCA 2011) (belated appeal Hawkes, Thomas, Roberts); DeSue v. State, 975 So.2d 1136 (Fla. 13' DCA 2008) (3.800(a) pro se bar appeal by Circuit Court Bay County L.T. Case Webster, Benton, Polston)..DéSue v."state,~79^so3d 23 (Fla. 1" DCA 2012) (3.800 a Wölf' Clärk Wetherell); DeSue v. State, 37 FLW D2389 (Fla. 1" DCA 2012) (belated appeal sanction opinion, Wolf, Clark, Marstiller); DeSue v. Tucker, 79 So.3d 71 (Fla. 1" DCA 2011) (Habeas Corpus 79.01, Benton, Hawkes, Wetherell). All of these DeSue, supra opinion were mandated in the DCA under nolle prosequi L.T. Case No.: These Judges were "without jurisdiction," so Petitioner is being denied access to the Court to not expose these erroneous appeal rulings, does violates his rights to due process. Aguilar, 987 So.2d The belated appeal has been intentionally stricken by biasness to conceal this injustice and to keep Petitioner incarcerated under nolle prosequi Case No.: by misusage of political power of Article I Sec. I Fla. Const. 10

17 Even former staff attorney for this Supreme Court, but now Assistant Attorney General Barbara Debelius concedes Petitioner is entitled to an appeal in this cause. Nevertheless the State or General Counsel in the belated appeal did not pursue a defense of Petitioner being "previously pro se sanction by a 'panel' of Judges of the District Court," because they know it would be a untrue defense so biasly Judges Wolf, Clark, and Marstiller makes this "untrue assertion in their opihión uširig their politiëãl pöwêr to do Petitiön~ef~a~irijustice," be~cauštof~their immunity from civil suit manifesting injustice, when strickening the belated appeal, asserting the Habeas Corpus denial concerns Bay County Case No.: , when the belated appeal had not been granted to treat it as a Notice of Appeal to Invoke Jurisdiction of the District Court to review this final order, which construed Article V Sec. 4(b)(1) Fla. Const. See Appendix A infra. These Judges biasness for the Petitioner is exposed. Clearly this opinion shows the panel Wolf, Clark, and Marstiller was showing partiality to protect the District Court interest in this case to prevent a concession from being made by the State or General Counsel exposing their intentional unethical judicial misconduct. Marshall, 100 S.Ct. 1610, Circuit Court Chief Judge Hentz McClellan of Calhoun County did not assert the Habeas Corpus concerns Bay County Circuit Court Case No.: , 11

18 rather the Chief Judge McClellan entered a order requiring the Department of Corrections to file a response that demonstrate Petitioner had stated a "prima facie ground for relief in his habeas petition," which Chief Judge McClellan did not summary dismiss. See Quarles v. State, 56 So.3d 857, 858 (Fla. 1" DCA 2011); See Leichtman v. Singletary, 674 So.2d 889, 891 (Fla. 4th DCA 1996). District Judges Wolf, Clark, and Marstiller vicious actions to have DOC to inflict unjust punishment upon Petitioner is Barbaric, to prevent Petitioner from court litigations concerning their judicial misconduct in this base to intentionally deny Petitioner of his Liberty and to place his life in danger is the very breath of a manifest of injustice. See Solem v. Helm, 463 U.S. 277, S.Ct. 3001, 76 L.Ed.2d 637 (1983); Smith v. Maschner, 899 F.2d 940, 947 (10th Cir. 1990); Baker v. State, 878 So.2d 1236, 1246 (Fla. 2004); see Art. I. Sec. 17 and 21 Fla. Const. Eight Amend. U.S. Const. but see Hampton v. State, 421 So.2d 775 (Fla. 5th DCA 1992) (DOC charged with the functions to maintain adequate records to discharge a inmate prisoner); Lewis, supra. CONCLUSION Petitioner's rights Article I Sec. 1, 9, 17, and 21 Fla. Constitution and First, Eight, and Fourteenth Amendments to the U.S. Constitution and Article V Sec. 4(a) and 4(b)(1) Florida Constitution has been "expressly construed," requiring this Court to accept jurisdiction to correct this very gross injustice. See Engle v. Isaac, 12

19 456 U.S. 107, S.Ct. 1558, 71 L.Ed.2d 783 (1983); Article V Sec. 3(b)(3) Fla. Const. The motion for disqualification of the entire First District Court of Appeal judges is pending that was filed November 13, 2012, but was docketed November 19, See Motion to Stay proceeding. CERTIFICATE OF SERVICE I HEREBY CERTIFY that this foregoing "Amended Jurisdictional Brief with Appendix A infra, has been placed in the hands of a Department of Correctiohs Official, for mailing to, the Office of the General Counsel, Jennifer Parker, Department of Correction, 501 South Calhoun Street, Tallahassee, Florida , and to Clerk Thomas D. Hall, Supreme Court, 500 South Duval Street, Tallahassee, FL on this 26, day of November, CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that, pursuant to the Florida Rule of Appellate Procedure this brief was typed in New Times Roman 14 points. Michael Chdrles DeSue DC# Calhoun Correctional Institution S.E. Institution Drive Blountstown, FL