The next case is the ground debris is coming up, the Pennsylvania. It's really good. I'm sorry, I'm sorry. Good morning. I'm sorry, excuse me for taking a big jacket. I was just a little bit too warm. We are too. Can you go ahead and hold the seat? No, that's good. Shall I begin? You like some ribat? Yes, I would like three minutes. Please, sir. We are here because my client, Mr. Grande, filed a mixed petition and the district court asking for habeas court is really, and it was dismissed because it was mixed. And it's my position that under the case of wines that he should have been granted a stay in the district court and allowed to go back to the state court and liquefate his issues. And for this to happen under wines, there have to be several factors. One, there has to be good cause for the person not to have exolested his or her issues
. Number two, the issues that they wish to litigate, or the person wishes to litigate, has, you must have merit or you not be clearly merit less. And the third is that there should not have been any dilatory tactics in trying to set up a case of stay in the bank. Now, my client's case, I am adamant that he had just caused not to exhaust his issues in state court. First, he was subjected despite what the commonwealth of the court said. But he was pretty moved to that. I have a question. Are the unexhausted claims time barred under state law now? Yes, they are. And if he were to go back to state court at this time, his sentence will be over soon. And if he were to go back to state court and be permitted to litigate the PCRA, it would immediately stop once his sentence is over because under the state statute 42 PA 9543A1, a person to be eligible for PCRA review has to be either serving a sentence of incarceration, parole, probation, awaiting execution, or serving a sentence that must expire before the disputed one. That one is an expired one. And it's my understanding that it should be sometime this summer around August, because he got five to ten years. Five to ten years was imposed in 98. I believe, barred 99, he had some credit time. And there's just no way that he could make it through the PCRA process without and then go to court and then I'm not saying, okay, you know, it's over
. You're not serving a sentence. Is the issue moved after three months or so? I'm sorry, didn't you? Is the issue moved in three months? He's getting out in August. Well, the issue of a direct appeal wouldn't be moved. If he were to allow, our argument is that he was completely stripped of his right to a direct appeal, because he was subjected to what is called unitary review, which was deemed to be unconstitutional in Pennsylvania seven months before he was sentenced. What happened is... Was that the procedure permitted under Pennsylvania law at the time that he was taking a direct appeal? No, it was not. It was ruled unconstitutional seven months prior to the time of his appeal. Prior to the time he was sentenced, the independence of any state court determined that the military appeal for good or bad was a proper procedure. They did not even consider it. What they did or what the court did was deem his appeal to be a denial of PCRA relief. It's in the docket and the official Superior Court docket. That's what's wrong with the notice of appeal that his attorney filed on his behalf
. And although the panel, the Superior Court panel, when they issued the judgment, when they affirmed the judgment, they said that this is affirming the judgment of sentence, but it was still categorized as a PCRA. Do you have the procedure was approved so long that the petitioner had separate counsel? No, that's not the case. The case is that there's a two-tiered process, a process for direct review and a process for collateral review. Justice isn't in the federal court. And there are certain issues that are raised on direct review, which cannot be raised in collateral review. Although sometimes the situation is vice versa, there are some issues that can be raised in the PCRA that could not be raised on direct appeal. So this unconstitutional process, which was initially for capital defendants so that they could have all their issues together, and assume the court realized that this was not good. This is what he was subjected to. And although the commonwealth may argue he was not, if it looks like a duck and talks like a dog, so the saying goes, that's what it is. The trial judge ordered his quarter-pointed counsel upon post sentence motions to include every single issue that he could possibly have on a PCRA. And this doesn't even make sense because PCRA is for challenging the stewardship of all counsel. There are other issues that can be in the PCRA, constitutional violations that undermine the truth-determining process, unlawfully induced, guilty, obstruction of the right to appeal. When did the new counsel come in? The new counsel came in after first counsel did some post trial motions, then by an as you know, it was a conflict or there was a conflict. And first counsel was removed and then the new counsel came in
. That was Mr. Campbell. That was Mr. Campbell. Okay. And what did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? Did he do, just like the last time, This is what? I think erstenobars is his card distribution. Or just forget those and go through all the issues and say none of them happen now. Is it his kind of messenger you're going to set represents the most important issue for Grondin? That is, there was a conflict on the part of council and the court. Which council? Mr. Campbell. Mr. Campbell, chief. I was going to say, oh good. Mr
. Campbell and the court and the Commonwealth. They all played a part in this. Campbell did bring in an effective assistance of trial council before the court. All right. So now it's the question of Mr. Campbell's, the Founder Council. And if he jumps right from post sentence motions to PC already, then where is my client supposed to challenge Mr. Campbell's effect? Of course. You do not have challenge Mr. Campbell's in effect, and it's in the Pennsylvania State Court. No, he could not, unless he filed a subsequent PCRA and there was some reason. Well, the way the way the answer is yes. He could, he could have filed. He could have challenged, I mean, it happens on the time that a PCRA councilor then challenged
. Yes, it does happen that PCRA council are challenged. However, in the series of mishaps that occurred in my client's case, what he did after he realized everything that was happening to him, he asked to proceed, proceed. He filed petition in superior court to proceed, proceed, and this was denied. And he has a right to represent himself. It wasn't referred to the trial court for a greater hearing or a hearing under Elvis. And then after council went and filed a brief, he tried to get a removed again and counseled in final Lawrence petition, which is a petition that's supposed to be filed when a client raises the counsels in effect and this after a brief has been filed in superior court. So eventually, Mr. Grunney filed a petition for a Lawrence of appeal in the State Supreme Court. And the Supreme Court docket, as you saw in my appendix, says a petition for a Lawrence of appeal was granted, which means that Alacard was men and he was supposed to file a brief. He never received a brief in schedule and he kept contacting the court asking about a brief in schedule. I mean, never received one. And then he gets a notice saying, your petition for a Lawrence of appeal is dismissed. So naturally, being a pro-save petitioner, he sees that he's classified as a PCRA client or a petitioner. Everything's been denied
. He's gone and naturally picked up the next step is the district court, because that's what happens after state collateral. So relief, the next step is the district court. And that's what he did. But by the time the district court dismissed his case, it was too late for him to go back to the state court, unless he could come under one of the exceptions. And that was on the question of Mr. Campbell's in effect of this? Yes. And trial that was actually Mr. Campbell and trial court counsel, because Mr. Runny felt that he never had the opportunity to litigate either one. As to the issue of merit, he had many issues, a plethora of issues that he wanted to raise, but one that I could definitely say had merit, is that he was entitled to a direct appeal and he didn't get it. And the PCRA, if his Hamie's court was petitioned, had been state, and he had been allowed to go back. At that time, he could have had his right to appeal reinstated. He could have alleged a breakdown in the court system, because certainly the confusing information that he received from the Supreme Court, obliterated any opportunity he would have to continue with that. As far as the requirement of
... Good. Let's hear from Ms. Kellinger, and what have you met with? All right. Thank you very much. Good morning. Good morning, Ms. Kellinger. Thank you, Mr. Court. I'm Mary Ann Kellinger, and I represent the District Attorney of Montgomery County. Your honor, the kind of love believes that Mr. Bauer, the trial attorney, got out of the case, and Mr
. Campbell came in, as any lawyer would have done at that point. He raised an effectiveness of trial counsel as well as the other issues. Now, this was before the trial court. Before the trial court, there were two... I have a couple of two hearings. If I remember, it was April and July hearing, lengthy hearings with numerous witnesses, and after the hearings, the hearings were at April 30, June 29, then the trial court, this may be a ruling in the Commonwealth's favor, and then he went to Superior Court. Superior Court affirmed the Commonwealth. He went to the Supreme Court of Pennsylvania in the middle of the... What was the Supreme Court on direct appeal? Yes. Well, it was on direct appeal, yes
. But it acknowledged that there were ineffectiveness issues. We refer, unfortunately, to ineffectiveness issues on some time under the general term, DCRA issues. But the Superior Court recognized that there were ineffectiveness of trial counsel issues as well as issues with the trial, it was a memorandum opinion, dependent, for the most part, on a really excellent opinion by Judge Ferrer. Mr. Rodney... You know, it was representing himself at this point. Father Jose Petition, there was a return to the State Court by the Supreme Court to make sure that he was competent. Before you get up to the Supreme Court, what about the PCR? Was there also a disposition by the Superior Court of the PCR conclusion? Well, it wasn't a PCR, it was a use of terminology there. It was not a PCR hearing. When he should have had the PCR hearing, would have been after the Supreme Court. Then he had a year and a half left to file a PCR, which is what would normally happen in Pennsylvania. Even when you had a new counsel, I post sentence motions, that new counsel goes through, then it's a PCR hearing and which both counsel. Everything was on direct appeal. But ineffected by raised during the direct appeal were claims of ineffective assistance of trial counsel. Correct. And then after the afterwards through the Pennsylvania Superior Court, Pennsylvania Supreme Court, then there was how much time to file a PCR. The Supreme Court decision was in August of 2002 and he had until November 19, 2003 to file a PCR petition. And none was ever filed. None was filed. The addition for this court was filed. Yes. What was there? What is your, the record that we have a learning in the file, a PCR, a concerning appellate counsel? Nothing. Did you notice to him that you now have X amount of time on the PCR? I don't believe so. Is that there's no notification for body form? No, there's nothing on the statute. Is a notice provided to counsel? Will the counsel file the sort of appeal to the Supreme Court? No, no. Everyone's deemed to know where it went
. Everything was on direct appeal. But ineffected by raised during the direct appeal were claims of ineffective assistance of trial counsel. Correct. And then after the afterwards through the Pennsylvania Superior Court, Pennsylvania Supreme Court, then there was how much time to file a PCR. The Supreme Court decision was in August of 2002 and he had until November 19, 2003 to file a PCR petition. And none was ever filed. None was filed. The addition for this court was filed. Yes. What was there? What is your, the record that we have a learning in the file, a PCR, a concerning appellate counsel? Nothing. Did you notice to him that you now have X amount of time on the PCR? I don't believe so. Is that there's no notification for body form? No, there's nothing on the statute. Is a notice provided to counsel? Will the counsel file the sort of appeal to the Supreme Court? No, no. Everyone's deemed to know where it went. Everyone's deemed to know that you should post these things first and then then you get your direct appeal and then you file your PCR. Yes. But I don't think there's anything. I've never known of anyone getting any information. It's very fair, but they give sets the rule in Pennsylvania and when you have a lawyer and not your subject, they say we suppose. And say, yes, I was, say, if he had notified the judge or if he had contacted a court, I would think about, you know, somebody would explain that to him, but he went immediately to federal court. But when he went to federal court, he was still within time. Was there indeed a file, a petition? Yes. Yes. Did you think the court should have advised him or allowed him to go back to the state court? The district court might have said, you don't have time to file that petition and the district court could have stayed the action pending exhaustion in the state court. Well, one issue had been addressed in state court and the magistrate judge found that it was not in any way an issue that would have been addressed in the district court had been done. Everything had been done promptly on that one issue. I have never seen anyone, I have never seen the district court do that. So that's why I must have been stunned
. Everyone's deemed to know that you should post these things first and then then you get your direct appeal and then you file your PCR. Yes. But I don't think there's anything. I've never known of anyone getting any information. It's very fair, but they give sets the rule in Pennsylvania and when you have a lawyer and not your subject, they say we suppose. And say, yes, I was, say, if he had notified the judge or if he had contacted a court, I would think about, you know, somebody would explain that to him, but he went immediately to federal court. But when he went to federal court, he was still within time. Was there indeed a file, a petition? Yes. Yes. Did you think the court should have advised him or allowed him to go back to the state court? The district court might have said, you don't have time to file that petition and the district court could have stayed the action pending exhaustion in the state court. Well, one issue had been addressed in state court and the magistrate judge found that it was not in any way an issue that would have been addressed in the district court had been done. Everything had been done promptly on that one issue. I have never seen anyone, I have never seen the district court do that. So that's why I must have been stunned. Were there claims presented in the district court that were not exhausted? Yes. There was a difference in the total, the number of claims you made, but there were many claims that he made, were some of those un-exhausted? They were defaulted claims. Court now that they were defaulted and they did. And they defaulted in one way. In the sense that as an independent state procedure, by a failure to file a PCRA, by a failure to file the NPCRA within the state requirements. Yes. Are you saying that applied to all of his claims? No, the one claim which had been addressed, the magistrate judge didn't address herself and found that it was not contrary to any federal law, any federal case, any United States Supreme Court case. That was the issue of the ineffectiveness of trial counsel to call his wife as a witness. And that was one of the issues addressed, see these issues were addressed in the hearings in front of the trial judge. The wife at the hearing took the Fifth Amendment when he was talking about people starting from the Sanitary. Because that was an issue that came up, why wasn't the... And Judge Malz did address that in specifically the language
. Were there claims presented in the district court that were not exhausted? Yes. There was a difference in the total, the number of claims you made, but there were many claims that he made, were some of those un-exhausted? They were defaulted claims. Court now that they were defaulted and they did. And they defaulted in one way. In the sense that as an independent state procedure, by a failure to file a PCRA, by a failure to file the NPCRA within the state requirements. Yes. Are you saying that applied to all of his claims? No, the one claim which had been addressed, the magistrate judge didn't address herself and found that it was not contrary to any federal law, any federal case, any United States Supreme Court case. That was the issue of the ineffectiveness of trial counsel to call his wife as a witness. And that was one of the issues addressed, see these issues were addressed in the hearings in front of the trial judge. The wife at the hearing took the Fifth Amendment when he was talking about people starting from the Sanitary. Because that was an issue that came up, why wasn't the... And Judge Malz did address that in specifically the language. But about the issue that Mr. Groney seems most interested in, which is the ineffectiveness of a public counsel. That issue had not been exhausted. No, no, that's what he should have done. He should have filed the PCRA after the case went to the Supreme Court and then he could have addressed the ineffectiveness of a public counsel. But what about the magistrate or the district court saying, you know you haven't exhausted that issue, go back to the state court and exhaust it and I'll hold this case until you do so. You think that was a mistake when the district court did not do that? No, I have to admit that since the district court did address in a sense all the issues, three were defaulted and there's only one issue and that issue was addressed. How was it addressed? The issue involving the white was addressed in an ineffectiveness of the pallet counsel. Oh, you know a pallet counsel was not ineffective but I think that was the state court and the magistrate judge's opinion of the issue involving the white because we had hearings and when she refused to testify. The district court did address the ineffectiveness of the pallet counsel. When involving the white, yes. That's the one issue that was completely. But there were other issues that did not involve the white but did involve the effect of assistance. Yes
. But about the issue that Mr. Groney seems most interested in, which is the ineffectiveness of a public counsel. That issue had not been exhausted. No, no, that's what he should have done. He should have filed the PCRA after the case went to the Supreme Court and then he could have addressed the ineffectiveness of a public counsel. But what about the magistrate or the district court saying, you know you haven't exhausted that issue, go back to the state court and exhaust it and I'll hold this case until you do so. You think that was a mistake when the district court did not do that? No, I have to admit that since the district court did address in a sense all the issues, three were defaulted and there's only one issue and that issue was addressed. How was it addressed? The issue involving the white was addressed in an ineffectiveness of the pallet counsel. Oh, you know a pallet counsel was not ineffective but I think that was the state court and the magistrate judge's opinion of the issue involving the white because we had hearings and when she refused to testify. The district court did address the ineffectiveness of the pallet counsel. When involving the white, yes. That's the one issue that was completely. But there were other issues that did not involve the white but did involve the effect of assistance. Yes. Those were not addressed by the district court. They were not bound to have any merit and they were not. She found that they have been defaulted. It's all because not filing time in the state court of what? No, they had been addressed in some ways and some that had actually been addressed in the hearings also. In the state court of the federal court? They had been addressed in the post sentence motion hearings directly after trial. But not of the PCR. See what I'm trying to get at is, there were many of these issues he raised in the district court, unexhausted and could he have gone back to the state court? Was he still in time to file the PCR? He could have filed a PCR against Mr. Campbell. He had the time to do that. Yes. After he filed the district court? Yes, he still had time. He had not much at that point but he had as I indicated he had about 15 months after the Supreme Court of Pennsylvania's ruling came down to file a PCR. I'm letting whatever issues he wanted and of course it would have been the first DCR to deal with the effectiveness of the Pellet Council. But he did not file that
. Those were not addressed by the district court. They were not bound to have any merit and they were not. She found that they have been defaulted. It's all because not filing time in the state court of what? No, they had been addressed in some ways and some that had actually been addressed in the hearings also. In the state court of the federal court? They had been addressed in the post sentence motion hearings directly after trial. But not of the PCR. See what I'm trying to get at is, there were many of these issues he raised in the district court, unexhausted and could he have gone back to the state court? Was he still in time to file the PCR? He could have filed a PCR against Mr. Campbell. He had the time to do that. Yes. After he filed the district court? Yes, he still had time. He had not much at that point but he had as I indicated he had about 15 months after the Supreme Court of Pennsylvania's ruling came down to file a PCR. I'm letting whatever issues he wanted and of course it would have been the first DCR to deal with the effectiveness of the Pellet Council. But he did not file that. But he still had time to do so after he filed a district court? Let me see. The Pennsylvania Supreme Court denied Alec Eyer on August 22, 2002. Right. I'm looking at the district court's opinion. So he had 15 months after that. Is that correct? He had until, and it stated I believe in some of the cases, November 19, 2003. And I think the Tensop Council agrees with that date also. Okay. So when was the heaviest, when did the, when did the church, well, the magistrate church, well, was render her opinion? June 16, 2003. What is the, he comes off? His sentence is completely finished in July of this year. Was that correct? The 10 year prior August of this year depending on the amount of credit. I see. He was originally. Was he proroned after five years? Yes
. But he still had time to do so after he filed a district court? Let me see. The Pennsylvania Supreme Court denied Alec Eyer on August 22, 2002. Right. I'm looking at the district court's opinion. So he had 15 months after that. Is that correct? He had until, and it stated I believe in some of the cases, November 19, 2003. And I think the Tensop Council agrees with that date also. Okay. So when was the heaviest, when did the, when did the church, well, the magistrate church, well, was render her opinion? June 16, 2003. What is the, he comes off? His sentence is completely finished in July of this year. Was that correct? The 10 year prior August of this year depending on the amount of credit. I see. He was originally. Was he proroned after five years? Yes. So he's been on prorol for roughly five years now. Yes. Any other questions? Anything else you want to tell us? No. We support everything the district court did, of course. Good. Thank you very much. Thank you very much. Your honor, I reiterate that when the client received a duck in information that his appeal was from the denial of a PCR egg water, and when he received confusing information from the Supreme Court that caused him to lose his right to further litigate his issues there, that there was no other conclusion that he could come to, than he was to go to the next venue, which would be district court, because he was informed on paper that his appeal was from the denial of a PCR egg water. I did attach the duck egg to my, uh, the superior court duck egg. And it does say appeal from PCR egg water. Also, the judge, the trial judge, clinically stated that they were having PCR egg hearings when he was still in trial court. Now, one thing that, that, that, and I can't remember the name of the dissenting justice in wine said, is that the stay in a bane's policy should not be used to track the unwary, prosaic litigant. And I'd like to analogize that to this situation by when, when you were examiners, killinger, or rather when she was speaking to you, you've asked about notification. No, there is no specific requirement that a person be notified
. So he's been on prorol for roughly five years now. Yes. Any other questions? Anything else you want to tell us? No. We support everything the district court did, of course. Good. Thank you very much. Thank you very much. Your honor, I reiterate that when the client received a duck in information that his appeal was from the denial of a PCR egg water, and when he received confusing information from the Supreme Court that caused him to lose his right to further litigate his issues there, that there was no other conclusion that he could come to, than he was to go to the next venue, which would be district court, because he was informed on paper that his appeal was from the denial of a PCR egg water. I did attach the duck egg to my, uh, the superior court duck egg. And it does say appeal from PCR egg water. Also, the judge, the trial judge, clinically stated that they were having PCR egg hearings when he was still in trial court. Now, one thing that, that, that, and I can't remember the name of the dissenting justice in wine said, is that the stay in a bane's policy should not be used to track the unwary, prosaic litigant. And I'd like to analogize that to this situation by when, when you were examiners, killinger, or rather when she was speaking to you, you've asked about notification. No, there is no specific requirement that a person be notified. However, personally, if I'm, finish the direct appeal, I tell my client you have this amount of time to file a PCR egg every month, that you wait to file a PCR egg, or be deducted from the time that you have to proceed to federal court. I at least give them that benefit. This man had no one to turn to. And there's, when, when he believed that his PCR egg appeal had been denied, the next natural step would be federal court. Could you comment, Ms. Rodriguez, because I think what you're trying to establish is that there was cause for not exhausting. Yes. And your effective assistance from the fellow counsel, playing, but there's language in the case of Johnson versus Pinchack, you may be familiar with, that says as follows, ineffective assistance of post-conviction counsel cannot constitute cause. Because the Sixth Amendment does not entitle a defendant to post-conviction counsel. Well, the Sixth Amendment may not entitle a person to post-conviction counsel. However, the Pennsylvania, Pennsylvania rules of criminal procedure 904 entitles a litigant to a PCR egg counsel for the first PCR egg petition. And in fact, if that's not given, it's remanded for appointment of counsel. And by virtue of the fact that a person is entitled to counsel for the first PCR egg, they are entitled under the Sixth Amendment to effective assistance of counsel. And that is not what my client received
. However, personally, if I'm, finish the direct appeal, I tell my client you have this amount of time to file a PCR egg every month, that you wait to file a PCR egg, or be deducted from the time that you have to proceed to federal court. I at least give them that benefit. This man had no one to turn to. And there's, when, when he believed that his PCR egg appeal had been denied, the next natural step would be federal court. Could you comment, Ms. Rodriguez, because I think what you're trying to establish is that there was cause for not exhausting. Yes. And your effective assistance from the fellow counsel, playing, but there's language in the case of Johnson versus Pinchack, you may be familiar with, that says as follows, ineffective assistance of post-conviction counsel cannot constitute cause. Because the Sixth Amendment does not entitle a defendant to post-conviction counsel. Well, the Sixth Amendment may not entitle a person to post-conviction counsel. However, the Pennsylvania, Pennsylvania rules of criminal procedure 904 entitles a litigant to a PCR egg counsel for the first PCR egg petition. And in fact, if that's not given, it's remanded for appointment of counsel. And by virtue of the fact that a person is entitled to counsel for the first PCR egg, they are entitled under the Sixth Amendment to effective assistance of counsel. And that is not what my client received. Thank you. Any other questions? Thank you. Thank you, both counsel, for an helpful argument. I think we'll take the case under a bad.
The next case is the ground debris is coming up, the Pennsylvania. It's really good. I'm sorry, I'm sorry. Good morning. I'm sorry, excuse me for taking a big jacket. I was just a little bit too warm. We are too. Can you go ahead and hold the seat? No, that's good. Shall I begin? You like some ribat? Yes, I would like three minutes. Please, sir. We are here because my client, Mr. Grande, filed a mixed petition and the district court asking for habeas court is really, and it was dismissed because it was mixed. And it's my position that under the case of wines that he should have been granted a stay in the district court and allowed to go back to the state court and liquefate his issues. And for this to happen under wines, there have to be several factors. One, there has to be good cause for the person not to have exolested his or her issues. Number two, the issues that they wish to litigate, or the person wishes to litigate, has, you must have merit or you not be clearly merit less. And the third is that there should not have been any dilatory tactics in trying to set up a case of stay in the bank. Now, my client's case, I am adamant that he had just caused not to exhaust his issues in state court. First, he was subjected despite what the commonwealth of the court said. But he was pretty moved to that. I have a question. Are the unexhausted claims time barred under state law now? Yes, they are. And if he were to go back to state court at this time, his sentence will be over soon. And if he were to go back to state court and be permitted to litigate the PCRA, it would immediately stop once his sentence is over because under the state statute 42 PA 9543A1, a person to be eligible for PCRA review has to be either serving a sentence of incarceration, parole, probation, awaiting execution, or serving a sentence that must expire before the disputed one. That one is an expired one. And it's my understanding that it should be sometime this summer around August, because he got five to ten years. Five to ten years was imposed in 98. I believe, barred 99, he had some credit time. And there's just no way that he could make it through the PCRA process without and then go to court and then I'm not saying, okay, you know, it's over. You're not serving a sentence. Is the issue moved after three months or so? I'm sorry, didn't you? Is the issue moved in three months? He's getting out in August. Well, the issue of a direct appeal wouldn't be moved. If he were to allow, our argument is that he was completely stripped of his right to a direct appeal, because he was subjected to what is called unitary review, which was deemed to be unconstitutional in Pennsylvania seven months before he was sentenced. What happened is... Was that the procedure permitted under Pennsylvania law at the time that he was taking a direct appeal? No, it was not. It was ruled unconstitutional seven months prior to the time of his appeal. Prior to the time he was sentenced, the independence of any state court determined that the military appeal for good or bad was a proper procedure. They did not even consider it. What they did or what the court did was deem his appeal to be a denial of PCRA relief. It's in the docket and the official Superior Court docket. That's what's wrong with the notice of appeal that his attorney filed on his behalf. And although the panel, the Superior Court panel, when they issued the judgment, when they affirmed the judgment, they said that this is affirming the judgment of sentence, but it was still categorized as a PCRA. Do you have the procedure was approved so long that the petitioner had separate counsel? No, that's not the case. The case is that there's a two-tiered process, a process for direct review and a process for collateral review. Justice isn't in the federal court. And there are certain issues that are raised on direct review, which cannot be raised in collateral review. Although sometimes the situation is vice versa, there are some issues that can be raised in the PCRA that could not be raised on direct appeal. So this unconstitutional process, which was initially for capital defendants so that they could have all their issues together, and assume the court realized that this was not good. This is what he was subjected to. And although the commonwealth may argue he was not, if it looks like a duck and talks like a dog, so the saying goes, that's what it is. The trial judge ordered his quarter-pointed counsel upon post sentence motions to include every single issue that he could possibly have on a PCRA. And this doesn't even make sense because PCRA is for challenging the stewardship of all counsel. There are other issues that can be in the PCRA, constitutional violations that undermine the truth-determining process, unlawfully induced, guilty, obstruction of the right to appeal. When did the new counsel come in? The new counsel came in after first counsel did some post trial motions, then by an as you know, it was a conflict or there was a conflict. And first counsel was removed and then the new counsel came in. That was Mr. Campbell. That was Mr. Campbell. Okay. And what did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? What did he do? Did he do, just like the last time, This is what? I think erstenobars is his card distribution. Or just forget those and go through all the issues and say none of them happen now. Is it his kind of messenger you're going to set represents the most important issue for Grondin? That is, there was a conflict on the part of council and the court. Which council? Mr. Campbell. Mr. Campbell, chief. I was going to say, oh good. Mr. Campbell and the court and the Commonwealth. They all played a part in this. Campbell did bring in an effective assistance of trial council before the court. All right. So now it's the question of Mr. Campbell's, the Founder Council. And if he jumps right from post sentence motions to PC already, then where is my client supposed to challenge Mr. Campbell's effect? Of course. You do not have challenge Mr. Campbell's in effect, and it's in the Pennsylvania State Court. No, he could not, unless he filed a subsequent PCRA and there was some reason. Well, the way the way the answer is yes. He could, he could have filed. He could have challenged, I mean, it happens on the time that a PCRA councilor then challenged. Yes, it does happen that PCRA council are challenged. However, in the series of mishaps that occurred in my client's case, what he did after he realized everything that was happening to him, he asked to proceed, proceed. He filed petition in superior court to proceed, proceed, and this was denied. And he has a right to represent himself. It wasn't referred to the trial court for a greater hearing or a hearing under Elvis. And then after council went and filed a brief, he tried to get a removed again and counseled in final Lawrence petition, which is a petition that's supposed to be filed when a client raises the counsels in effect and this after a brief has been filed in superior court. So eventually, Mr. Grunney filed a petition for a Lawrence of appeal in the State Supreme Court. And the Supreme Court docket, as you saw in my appendix, says a petition for a Lawrence of appeal was granted, which means that Alacard was men and he was supposed to file a brief. He never received a brief in schedule and he kept contacting the court asking about a brief in schedule. I mean, never received one. And then he gets a notice saying, your petition for a Lawrence of appeal is dismissed. So naturally, being a pro-save petitioner, he sees that he's classified as a PCRA client or a petitioner. Everything's been denied. He's gone and naturally picked up the next step is the district court, because that's what happens after state collateral. So relief, the next step is the district court. And that's what he did. But by the time the district court dismissed his case, it was too late for him to go back to the state court, unless he could come under one of the exceptions. And that was on the question of Mr. Campbell's in effect of this? Yes. And trial that was actually Mr. Campbell and trial court counsel, because Mr. Runny felt that he never had the opportunity to litigate either one. As to the issue of merit, he had many issues, a plethora of issues that he wanted to raise, but one that I could definitely say had merit, is that he was entitled to a direct appeal and he didn't get it. And the PCRA, if his Hamie's court was petitioned, had been state, and he had been allowed to go back. At that time, he could have had his right to appeal reinstated. He could have alleged a breakdown in the court system, because certainly the confusing information that he received from the Supreme Court, obliterated any opportunity he would have to continue with that. As far as the requirement of... Good. Let's hear from Ms. Kellinger, and what have you met with? All right. Thank you very much. Good morning. Good morning, Ms. Kellinger. Thank you, Mr. Court. I'm Mary Ann Kellinger, and I represent the District Attorney of Montgomery County. Your honor, the kind of love believes that Mr. Bauer, the trial attorney, got out of the case, and Mr. Campbell came in, as any lawyer would have done at that point. He raised an effectiveness of trial counsel as well as the other issues. Now, this was before the trial court. Before the trial court, there were two... I have a couple of two hearings. If I remember, it was April and July hearing, lengthy hearings with numerous witnesses, and after the hearings, the hearings were at April 30, June 29, then the trial court, this may be a ruling in the Commonwealth's favor, and then he went to Superior Court. Superior Court affirmed the Commonwealth. He went to the Supreme Court of Pennsylvania in the middle of the... What was the Supreme Court on direct appeal? Yes. Well, it was on direct appeal, yes. But it acknowledged that there were ineffectiveness issues. We refer, unfortunately, to ineffectiveness issues on some time under the general term, DCRA issues. But the Superior Court recognized that there were ineffectiveness of trial counsel issues as well as issues with the trial, it was a memorandum opinion, dependent, for the most part, on a really excellent opinion by Judge Ferrer. Mr. Rodney... You know, it was representing himself at this point. Father Jose Petition, there was a return to the State Court by the Supreme Court to make sure that he was competent. Before you get up to the Supreme Court, what about the PCR? Was there also a disposition by the Superior Court of the PCR conclusion? Well, it wasn't a PCR, it was a use of terminology there. It was not a PCR hearing. When he should have had the PCR hearing, would have been after the Supreme Court. Then he had a year and a half left to file a PCR, which is what would normally happen in Pennsylvania. Even when you had a new counsel, I post sentence motions, that new counsel goes through, then it's a PCR hearing and which both counsel. Everything was on direct appeal. But ineffected by raised during the direct appeal were claims of ineffective assistance of trial counsel. Correct. And then after the afterwards through the Pennsylvania Superior Court, Pennsylvania Supreme Court, then there was how much time to file a PCR. The Supreme Court decision was in August of 2002 and he had until November 19, 2003 to file a PCR petition. And none was ever filed. None was filed. The addition for this court was filed. Yes. What was there? What is your, the record that we have a learning in the file, a PCR, a concerning appellate counsel? Nothing. Did you notice to him that you now have X amount of time on the PCR? I don't believe so. Is that there's no notification for body form? No, there's nothing on the statute. Is a notice provided to counsel? Will the counsel file the sort of appeal to the Supreme Court? No, no. Everyone's deemed to know where it went. Everyone's deemed to know that you should post these things first and then then you get your direct appeal and then you file your PCR. Yes. But I don't think there's anything. I've never known of anyone getting any information. It's very fair, but they give sets the rule in Pennsylvania and when you have a lawyer and not your subject, they say we suppose. And say, yes, I was, say, if he had notified the judge or if he had contacted a court, I would think about, you know, somebody would explain that to him, but he went immediately to federal court. But when he went to federal court, he was still within time. Was there indeed a file, a petition? Yes. Yes. Did you think the court should have advised him or allowed him to go back to the state court? The district court might have said, you don't have time to file that petition and the district court could have stayed the action pending exhaustion in the state court. Well, one issue had been addressed in state court and the magistrate judge found that it was not in any way an issue that would have been addressed in the district court had been done. Everything had been done promptly on that one issue. I have never seen anyone, I have never seen the district court do that. So that's why I must have been stunned. Were there claims presented in the district court that were not exhausted? Yes. There was a difference in the total, the number of claims you made, but there were many claims that he made, were some of those un-exhausted? They were defaulted claims. Court now that they were defaulted and they did. And they defaulted in one way. In the sense that as an independent state procedure, by a failure to file a PCRA, by a failure to file the NPCRA within the state requirements. Yes. Are you saying that applied to all of his claims? No, the one claim which had been addressed, the magistrate judge didn't address herself and found that it was not contrary to any federal law, any federal case, any United States Supreme Court case. That was the issue of the ineffectiveness of trial counsel to call his wife as a witness. And that was one of the issues addressed, see these issues were addressed in the hearings in front of the trial judge. The wife at the hearing took the Fifth Amendment when he was talking about people starting from the Sanitary. Because that was an issue that came up, why wasn't the... And Judge Malz did address that in specifically the language. But about the issue that Mr. Groney seems most interested in, which is the ineffectiveness of a public counsel. That issue had not been exhausted. No, no, that's what he should have done. He should have filed the PCRA after the case went to the Supreme Court and then he could have addressed the ineffectiveness of a public counsel. But what about the magistrate or the district court saying, you know you haven't exhausted that issue, go back to the state court and exhaust it and I'll hold this case until you do so. You think that was a mistake when the district court did not do that? No, I have to admit that since the district court did address in a sense all the issues, three were defaulted and there's only one issue and that issue was addressed. How was it addressed? The issue involving the white was addressed in an ineffectiveness of the pallet counsel. Oh, you know a pallet counsel was not ineffective but I think that was the state court and the magistrate judge's opinion of the issue involving the white because we had hearings and when she refused to testify. The district court did address the ineffectiveness of the pallet counsel. When involving the white, yes. That's the one issue that was completely. But there were other issues that did not involve the white but did involve the effect of assistance. Yes. Those were not addressed by the district court. They were not bound to have any merit and they were not. She found that they have been defaulted. It's all because not filing time in the state court of what? No, they had been addressed in some ways and some that had actually been addressed in the hearings also. In the state court of the federal court? They had been addressed in the post sentence motion hearings directly after trial. But not of the PCR. See what I'm trying to get at is, there were many of these issues he raised in the district court, unexhausted and could he have gone back to the state court? Was he still in time to file the PCR? He could have filed a PCR against Mr. Campbell. He had the time to do that. Yes. After he filed the district court? Yes, he still had time. He had not much at that point but he had as I indicated he had about 15 months after the Supreme Court of Pennsylvania's ruling came down to file a PCR. I'm letting whatever issues he wanted and of course it would have been the first DCR to deal with the effectiveness of the Pellet Council. But he did not file that. But he still had time to do so after he filed a district court? Let me see. The Pennsylvania Supreme Court denied Alec Eyer on August 22, 2002. Right. I'm looking at the district court's opinion. So he had 15 months after that. Is that correct? He had until, and it stated I believe in some of the cases, November 19, 2003. And I think the Tensop Council agrees with that date also. Okay. So when was the heaviest, when did the, when did the church, well, the magistrate church, well, was render her opinion? June 16, 2003. What is the, he comes off? His sentence is completely finished in July of this year. Was that correct? The 10 year prior August of this year depending on the amount of credit. I see. He was originally. Was he proroned after five years? Yes. So he's been on prorol for roughly five years now. Yes. Any other questions? Anything else you want to tell us? No. We support everything the district court did, of course. Good. Thank you very much. Thank you very much. Your honor, I reiterate that when the client received a duck in information that his appeal was from the denial of a PCR egg water, and when he received confusing information from the Supreme Court that caused him to lose his right to further litigate his issues there, that there was no other conclusion that he could come to, than he was to go to the next venue, which would be district court, because he was informed on paper that his appeal was from the denial of a PCR egg water. I did attach the duck egg to my, uh, the superior court duck egg. And it does say appeal from PCR egg water. Also, the judge, the trial judge, clinically stated that they were having PCR egg hearings when he was still in trial court. Now, one thing that, that, that, and I can't remember the name of the dissenting justice in wine said, is that the stay in a bane's policy should not be used to track the unwary, prosaic litigant. And I'd like to analogize that to this situation by when, when you were examiners, killinger, or rather when she was speaking to you, you've asked about notification. No, there is no specific requirement that a person be notified. However, personally, if I'm, finish the direct appeal, I tell my client you have this amount of time to file a PCR egg every month, that you wait to file a PCR egg, or be deducted from the time that you have to proceed to federal court. I at least give them that benefit. This man had no one to turn to. And there's, when, when he believed that his PCR egg appeal had been denied, the next natural step would be federal court. Could you comment, Ms. Rodriguez, because I think what you're trying to establish is that there was cause for not exhausting. Yes. And your effective assistance from the fellow counsel, playing, but there's language in the case of Johnson versus Pinchack, you may be familiar with, that says as follows, ineffective assistance of post-conviction counsel cannot constitute cause. Because the Sixth Amendment does not entitle a defendant to post-conviction counsel. Well, the Sixth Amendment may not entitle a person to post-conviction counsel. However, the Pennsylvania, Pennsylvania rules of criminal procedure 904 entitles a litigant to a PCR egg counsel for the first PCR egg petition. And in fact, if that's not given, it's remanded for appointment of counsel. And by virtue of the fact that a person is entitled to counsel for the first PCR egg, they are entitled under the Sixth Amendment to effective assistance of counsel. And that is not what my client received. Thank you. Any other questions? Thank you. Thank you, both counsel, for an helpful argument. I think we'll take the case under a bad