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.

Appendix A: USCA-11[19] Order Denying Appeal For Application For A COA And Leave To Proceed IFP, August 23, 2004

Appendix B: USCA-11 Order Denying Appeal For Reconsideration Of Application For A COA[20] And Leave To Proceed IFP[21], October 7, 2004

Appendix C: USCA-11 Notification Of Receipt Of District Court Denial Of Permission To Proceed IFP On Appeal To USCA-11 And Request For IFP And Affidavit, June 25, 2004

Appendix D: USDC-NDG-AD[22] Order Denying Motion To Proceed IFP To Appeal Court Order Of March 16, 2004 Adopting Magistrate Judge’s Final Report And Recommendation, June 18, 2004

Appendix E: USDC-NDG-AD Order Adopting Magistrate Judge’s Final Report And Recommendation, March 16, 2004

Appendix F: USDC-NDG-AD Magistrate Judge’s Final Report And Recommendation, December 2, 2003

Appendix G: USDC-NDG-AD Magistrate Judge’s Order To Respondent To Show Cause, September 22, 2003

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Article 1 Section 9 Clause 2: The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

Amendment V -- No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI -- In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment VIII -- Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment XIV -- Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Title 18 U.S.C. § 242 – Deprivation of rights under color of law: Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States . . . shall be fined under this title or imprisoned not more than one year, or both; (More severe punishment is described for aggravating circumstances in connection with this crime, up to and including the death penalty.)

Title 28 U.S.C. § 2244 – Finality of Determination: (d): (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of—

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

Title 28 U.S.C. § 2253 – Appeal: (c)(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.

Title 28 U.S.C. 2254 -- State Custody; Remedies in Federal Court: (b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that—(B)(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

STATEMENT OF THE CASE

Prelude

At a time when Gwinnett County Georgia had a twenty million dollar suit pending in the courts for gross police misconduct and the County Police Department was anticipating an outside investigation for corruption and lax supervision, the murder of Emogene Thompson serendipitously provided an ideal vehicle to move the focus of the citizenry away from the Gwinnett County Police Department.

Within 18 hours of finding Mrs. Thompson’s body, on the basis of a brief professional contact with the victim, hearsay evidence from the victim’s son and three of the victim’s friends and several unspecific driver witness reports, four police officers sitting in a darkened police car in the police parking lot held court and determined Michael Chapel to be the murderer of Emogene Thompson.

Officer Michael Harold Chapel, Gwinnett’s highly respected “Top Cop” and “Officer Mike” to the children of the area, had an unblemished lifetime record as a high level boy scout and a United States marine who then served in the active marine reserves. He was a highly decorated police officer, with 28 commendations, the leader of the county’s prestigious swat team and an owner of a local business with a storybook family.

With the addition of tenuous eyewitness identification from a witness found by the Gwinnett County District Attorney, Officer Michael Chapel was arrested a week later, and In the 2½-year delay between his arrest and trial the police and prosecution manufactured the evidence that lead to the illegal conviction of Gwinnett County’s finest by the gross misconduct of a corrupt Georgia county under the color of law.

After Chapel, the careers of the officers in that darkened police car became meteoric. The leader, coincidently the architect of the disastrous and illegal Gwinnett County raid that caused the twenty million dollar lawsuit, Lieutenant John Latty retired a few years ago as Colonel John Latty. Latty’s number two, Sergeant Steve Cline quickly became Major Steve Cline and the chief investigator in the Chapel case, Investigator Jack Burnette, would retire from the police department after the trial and go to work the next day as an investigator for Danny Porter’s Office of the District Attorney. The fourth officer in that car was never identified except as subordinate to the future Colonel John Latty.

“If the lie is big enough, the people will believe it[23]”.

The Crime

On the morning of April 16, 1993, the body of Emogene Thompson, dead of two gunshot wounds to the head, was found in her automobile in the driveway of the Gwinnco Muffler Shop on Peachtree Industrial Boulevard just south of Georgia Highway 20 in the City of Sugar Hill. At almost the same time the first police officer arrived, the victim’s son, Michael Thompson, also arrived on scene. The victim’s son then gave a statement to the officer that he would repeat to other groups of police officers arriving on the scene during that morning.

Michael Thompson related to them that just after 3 PM on Saturday, April 3, 1993 his mother, Emogene Thompson dialed 911, reported a burglary at her home and requested police assistance. Officer Michael Chapel, just on duty in that area at 3 PM responded to the call a few minutes later. Mrs. Thompson told Chapel that she removed some $14,000 from the bank a few weeks earlier and secreted it in her home. The money was the remainder of proceeds of insurance policies on her boyfriend who had recently died and left her as the beneficiary of some $25,000 in insurance.

On or before April 1, 1993, Mrs. Thompson discovered $7,000 or half of her money had disappeared. Her son, Michael Thompson convinced her there had been a burglary. A veteran police officer, Chapel quickly determined there had been no burglary, and accused Mrs. Thompson’s son Michael of taking the money. Michael Thompson admitted a theft of several hundred dollars previously but denied taking the $7,000. Mrs. Thompson would not press a theft charge against her son Michael.

The next day Sunday, April 4^th, in response to a telephone message from Mrs. Thompson passed to him by his supervisor, GCPD Sergeant Donald Stone, Officer Chapel arrived at the Thompson home and spent a few minutes chatting on the front porch with her. Mrs. Thompson asked if there was any way other than prosecuting her son to achieve the return of her money. Chapel replied with a technique that had worked well for him in the past in such cases: “Bluff the boy,” he responded. “Tell him that the police are working on the case; that some of her money had been discovered at a crack house; and that a warrant for his arrest was being sought.” Chapel ended the conversation telling Mrs. Thompson he would do all he could to help her. He had meant that offer to be more or less perfunctory, but there is no way for anyone to know just how Mrs. Thompson, a fifty-year-old lady with a limited education and life experience, understood the implications of that brief conversation.

Stopping for a meal break at a favorite restaurant in the mall the following Wednesday, April 7^th, Officer Chapel accidentally spotted Michael Thompson on a “cigarette” break outside his place of employment, the Subway Sandwich Shop in the mall. Feeling an obligation to carry through with his promise of help to Mrs. Thompson, Chapel approached her son and began a conversation. Chapel first urged Thompson to return the stolen money to his mother. When Thompson did not respond, Chapel repeated the “bluff” he assumed Mrs. Thompson had carried through on, and warned that an arrest warrant for Thompson had been applied for. Chapel then went on to describe to Thompson all of the bad things that were going to happen to him in jail and prison.

The Investigation

Officer Chapel had used this technique of bluffing young, first-time offenders in family-related crimes into voluntarily correcting these situations, and it had worked well for him. He even had a name for the technique, calling it “Running the Boo.” A compassionate person as well as a police officer, Chapel spurned the number of arrests as a measure of a police officer’s effectiveness. He knew the hardship and misery an arrest could inflict upon an entire family, and where he could help in other ways, especially with youngsters, he would try. One of the “hearsay witness” friends of Mrs. Thompson [24] would relate on the witness stand how Officer Chapel helped her teen-aged daughter in exactly this manner. For many years, even after his arrest and conviction, many young adults in the area would relate similar tales of how Officer Chapel had helped them as youngsters.

On the morning of Friday, April 16^th, Michael Thompson arrived on the crime scene of his mother’s murder simultaneously with the first responding police officer. Thompson would tell his story about Officer Chapel, his mother and himself. He then stated a friend of his mother’s, Delores Burel, had been telling him that his mother was working with Officer Chapel in an attempt to get Michael to return the money to his mother. Thompson would continue to tell the story to each new group of police officers and even the District Attorney as they arrived on the scene.

On hearing of the murder that morning, Delores Burel telephoned Helen Barrett, the sister of the victim. Mrs. Burel told Mrs. Barrett about these events and mentioned two other friends of the victim who knew of these circumstances. Mrs. Barrett telephoned the police department, and reported the conversation. That day, the two other friends were interviewed and gave police details of what they knew. Delores Burel was not interviewed until 11:45 PM that night. During her interview, Mrs. Burel told of being on the telephone with Mrs. Thompson the night before several times and she had told her of a proposed meeting with the officer to discuss the case. Mrs. Thompson had said the date and time and place of such a meeting had not yet been arranged. Curiously, in spite of her claim to have been “constantly” on the telephone with Mrs. Thompson and discussing the case in detail, Mrs. Burel did not know the name of the officer. One of the other friends stopped by to brief Mrs. Burel about her own police interview and wrote down Officer Michael Chapel’s name on a piece of paper for her to use at Burel’s police interview scheduled for later that night.

That night the GCPD setup a roadblock in front of the Gwinnco Muffler Shop on PIB. Several of the driver witnesses mentioned police activity, including seeing a police vehicle in a monitoring position in the driveway between 8:45 and 9:30 PM and another police vehicle pulled up behind what must have been the victim’s automobile in the driveway of the Gwinnco Muffler Shop that briefly flashed its blue lights sometime between 9:30 and 10:00 PM on the night of the murder. The roadblocks would continue for several more nights.

Just before midnight on that first night, the four principle GCPD investigators on the case would sit in a darkened police car and conclude that Officer Michael Chapel was guilty [25] of the murder and robbery of Emogene Thompson. Thereafter, no suspect in the murder other than Officer Chapel would take place. It was significant that veteran police investigators would make such a hasty decision based only on hearsay and the still vague details reported by the driver witnesses. This is especially so when Delores Burel, the main hearsay witness and thus inferentially Chapel’s main accuser did not start her police interview until that exact time, 11:45 PM.

After leaving that police car, Chief Investigator Jack Burnette returned to his office where just after midnight, he would receive a call from another driver witness, Ronald Flashner [26], who reported seeing two civilian automobiles in the Gwinnco driveway back-to-back with several people moving around the cars between 9:30 and 10:00 PM. From Flashner’s descriptions and information from other witnesses, the lead car could only have been the victim’s, and the car backed up to it had to be her son Michael’s. His car was badly in need of repair, and the witness remarked that car was smoking so badly it obscured his view of PIB in front of the driveway. Burnette noted the information in his well-kept notes-log, but this important witness was never contacted by anyone connected with the case again.

One week after Mrs. Thompson’s body was found, on the 23rd, Gwinnett County District Attorney Danny Porter contacted the GCPD investigators and referred them to two driver witnesses who had seen the police officer outside of his vehicle in the driveway [27] and that one of them said he had observed a police officer in a patrol car that passed them [28] just after he and his driver had passed the muffler shop driveway. The investigators immediately interviewed the “eyewitness” and his driver at their place of work, and a few hours later returned with a photo lineup of eight police officers. After two false starts, the passenger eyewitness identified Michael Chapel as the officer in the patrol car that passed them on PIB just north of the muffler shop driveway.

Based on the sum of this evidence, Officer Michael Chapel was ordered to report to GCPD headquarters in Lawrenceville when his shift finished at 11 PM that night, the 23^rd. There he was interrogated for approximately four hours, then arrested for the murder, ordered to change into a waiting Gwinnett County prisoner uniform and lodged in the county jail. During his interrogation and just after, Officer Chapel begged his interrogator “friends” to check his alibi and gave them the names of several firefighters and police officers.

There is a severe weather track running from Southeastern Texas and Louisiana that runs northeast through Montgomery Alabama through Atlanta Georgia and then on to the East Coast. In the Atlanta area, the track runs just north of the actual city and then through the Gwinnett County cities of Norcross, Duluth, Suwannee, Sugar Hill and Buford. The track then leaves the area over Lake Lanier and proceeds northeastward.

On the night of Emogene Thompson’s murder, one of the worst storms of the year passed through the Atlanta leg of that storm track. The full force of the storm began just after 8:00 PM and lasted intermittently until about 2 AM when the last period of very heavy rain occurred. After dealing with the usual pre-storm problems, three North Side Precinct, GCPD officers met at a local church parking lot about 8 PM and decided to take shelter and watch the progress of the storm on one of the local broadcast TV stations at Fire 14, a county firehouse adjacent to their precinct headquarters. They arrived there at about 8:30 PM. The three officers were Shift Supervisor Sergeant Donald Stone and Officers Brian Reddy and Michael Chapel.

Investigators interviewed Sergeant Stone and Officer Reddy on the 23^rd, the night of Chapel’s arrest. Both men provided written statements. In his written statement, Officer Brian Reddy lied to investigators saying Chapel was not with them at Fire 14. This was disproved by all of the other firehouse witnesses. In his written statement, Sergeant Stone would confirm to Assistant Chief of Police Karl White that Chapel was indeed with them, and they arrived at about 8:30 PM. Stone would further state they all left at or after 10 PM. He stated Chapel left the firehouse on a call or some other errand about 20 minutes before he and Reddy left. Stone stated that he arrived at the next-door North Side Precinct at 10:15 PM. Telephone records from the firehouse that Stone did not dispute showed that he called his home from Fire 14 at exactly 10:17 PM. This information coincided exactly with what Stone said in other remarks to the Precinct Captain a day or two after the murder.

If Chapel left the firehouse 20 minutes before Stone, it would place Chapel’s departure about 9:57 PM, and that coincides with Chapel’s allegations exactly. GCPD dispatch records further show that Chapel was dispatched at precisely 9:57 PM to investigate a vandalism report at a residence on the other side of Buford from Gwinnco Muffler. Stopping quickly at his small business gym to pick up the days receipts, Chapel still arrived at the residence at 10:08 PM and took a report. The homeowners verified that time.

At Chapel’s trial, Officer Brian Reddy told the same lie that he told investigators on the night of Chapel’s arrest and claimed to have left the firehouse independently of Sergeant Stone. Sergeant Stone changed his story in trial testimony to say that Chapel left the firehouse between 9:20 and 9:30 PM that night to accommodate the Gwinnett County District Attorney’s theory of the case.

The police never did contact the firefighters whose names were given by Chapel as alibi witnesses, but three days after Chapel’s arrest, on the 27^th, four of the firefighters gave written statements to their captain affirming that all three of the police officers were present in the firehouse between about 8:30 and 10:00 PM. The 10:00 PM time was especially important to them because at that time most of the firefighters either passed through or simply left the TV room where the officers were on their way to bed. Just Prior to Chapel’s trial, these firefighters were interviewed both as a group and alone by Gwinnett County District Attorney Danny Porter. At Chapel’s trial, three of the firefighters told exactly the same stories as in their written statements, while the fourth tied Chapel’s departure to a certain movie on a cable channel. The other firefighters contradicted him however testifying that he was in the TV room watching the same movie they were on a local broadcast TV channel with storm reports in a crawl at the bottom of the screen that would not have been on a cable channel.

It is extremely significant that there are no written statements and there was no testimony at trial from any detective, investigator or any other police officer except the crime scene technicians (CSTs) showing they went anywhere near the victim’s automobile at the crime scene or at any other location on that first day. The CST’s at the crime scene and elsewhere took more than 50 photographs of the exterior and interior of the victim’s automobile before it was released to her son, Michael Thompson, within weeks of the murder. No defense attorney or defense investigator ever saw the actual crime scene automobile. They would only see these photographs.

A case meeting with all those involved in Chapel’s investigation was held on the 29^th, two days after the firefighter statements were made on the 27th, to review the evidence against the now arrested and charged suspect Chapel. At that time, the evidence consisted of only hearsay evidence from the victim’s friends, the eyewitness’ very tenuous identification of Chapel, the crime scene photographs and very little of anything else. There is an action item from that meeting noted in Chief Investigator Burnette’s logbook indicating Sergeant Steve Cline, Latte’s second in command in the case, was to perform an unnamed task “off-line”. That night, the GCPD CSTs the front seat only of Chapel’s police unit was tested with luminol by GCPD CSTs that had sat locked but otherwise unsecured since his arrest on the 23^rd and found a small spot of blood on the passenger armrest that the GBI Crime Scene Lab later determined contained the DNA of the victim, Emogene Thompson.

Preliminary Hearing

At Chapel’s preliminary hearing the following day, April 30, 1993, Chief Investigator Burnette described the case for the prosecution. He did not mention the telephone report he received just after midnight on the first night from Ronald Flashner, but he did describe a statement made to him from a driver witness who passed the driveway just after 9:30 PM on his way to mail his tax returns in Norcross who described the Gwinnco driveway as empty. He described the driveway on his return trip sometime after 11:15 PM as containing only the victim’s automobile. It seemed that Chapel was bound over for trial at this hearing mainly on the strength of County District Attorney Danny Porter’s strong arguments about the blood found in Chapel’s police unit the night before that was undergoing DNA analysis at that very moment. Defense Attorney Walt Britt called only Chapel’s wife Eren who testified in the main about the family’s finances. Britt did not call any of Chapel’s alibi witnesses.

This is the point, just two weeks after the murder, where the case would remain without further development for the next two and one-half years while Chapel allowed Attorney Walt Britt to delay the trial to fight a conflict of interest matter all the way to the Georgia Supreme Court [29] and the police and prosecution to prepare their evidence against him. Britt lost his case, and in November 1994, Gwinnett County attorney Johnny Moore was appointed to represent Chapel. Moore then recruited Atlanta attorney Elizabeth Rogan to assist.

The only other issue that could add anything to the brief descriptions above was the prosecution’s attempt to attribute guilt to Chapel by his spending in the week following the murder and his general financial situation. The District Attorney’s evidence for this was extremely contradictory. He could show that Chapel spent about $800 in $100 bills in the week following the murder, but another prosecution witness described a handshake business loan to Chapel of $1,400 or $1,600 in new $100 bills a few weeks before the murder that could and did explain that spending. District Attorney Danny Porter called this witness, a friend and sometime employer of Chapel, to show that Chapel needed money, but then what young family just starting out doesn’t? This witness was really a defense witness because his loan demonstrated where the money for Chapel’s limited spending with the currency he used during that period came from. A study by the GCPD of Chapel’s financial activity found nothing unusual [30].

The only other evidence came from a witness that the Gwinnett County District Attorney Danny Porter found in January 1995, almost two years after the murder. This witness described his occupation as manager of a male dance review (read male strippers) and a part time tree trimmer. He testified that when he and Chapel’s wife Eren just after the murder, unknown to each other but riding home from a birthday party for Eren in the same car. At a convenient stop, Mrs. Chapel left her purse unattended in a darkened automobile to make a phone call. When she saw him rifling her purse, she quickly returned. The witness testified he saw an envelope containing a large number of $100 bills in her purse when she opened the envelope and checked its contents. An affidavit from Mrs. Chapel explained the envelope contained her tips as a waitress, and there were no $100 bills.

Lost or Destroyed Exonerative Evidence

In the period between Chapel’s arrest and trial, a number of legitimate items of evidence were gathered, this included a loaded weapon of the type used in the murder with two rounds expended that was found several months after the crime behind a dumpster that was moved at a motel where Michael Thompson was known to stay on many occasions. At trial, Captain Latty testified the weapon had been exposed to the elements too long to test and was subsequently destroyed, but several months later Chief Investigator Burnette brought such a weapon as described to GBI ballistics expert Kelly Fite where it was test fired. Just before Chapel’s trial began in August 1995, Officer Brian Reddy turned in the same type weapon that he “forgot” had been in his possession at the time of the murder. This weapon was brought to Kelly Fite for test firing, and in his testimony at trial Fite admitted his attempt to replace the report of the test firing of the “Burnette” weapon with that of the Reddy weapon. Fite called this a simple mistake.

Of the remaining lost or destroyed evidence in this case were the telephone records subpoenaed by the police from the Bell South Telephone Company covering the March and April time periods for telephones at Chapel’s home and business, the North Side Precinct and adjoining Firehouse and Mrs. Thompson’s home. This process began as early as April 21^st, two days before Chapel’s arrest. The purpose of this evidence was to show incriminating evidence of contacts between Chapel and Mrs. Thompson April 3^rd and 15^th that lead finally to luring the victim to their fatal meeting in the Gwinnco Muffler Shop driveway on the night of the 15^th. Far from incriminating, these records showed no telephone contacts between Chapel and Mrs. Thompson and directly contradicted the statements given by the victim’s son Michael about his activities and the chief hearsay witness Delores Burel who had claimed she was on telephone almost constantly with Mrs. Thompson on the afternoon and evening of the murder discussing the proposed but indefinite meeting between Chapel and Mrs. Thompson. Additionally, the records from the victim’s home showed panic calls to a suspected drug dealer’s pager on the night after his contact with officer Chapel and calls to that same pager and the residence of the suspected dealer’s girlfriend at critical times on the night of the murder.

The Trial

At trial, the discussion of these records would consume almost a full day during the testimony of Lieutenant Powell. District Attorney Danny Porter admitted having custody of the original Bell South records that easily met the Federal Rules of Evidence, business record exception of Rule 803(6) when they were either lost or “accidentally” destroyed, depending on which page of the trial transcript is being examined. Porter would then argue that the information derived from the original records was hearsay and inadmissible, and, he would argue and extract a reluctant confirmation from Lieutenant Powell, only outgoing call records were available and provided by Bell South. This was in spite of a memo that was circulated over the name of Lieutenant Powell describing how to extract incoming telephone calls from his derived database. As far as the availability of such calls are concerned, anyone who is the least familiar with business database information processing knows that any and any number of fields in every record may be indexed, and incoming calls are then as easily accessible as outgoing calls.

Chapel’s trial and its attendant misconduct by the prosecution, his defense attorneys and others are described in agonizing detail in other submissions. It is noteworthy that on day 1 of testimony, as certain of the postcard-sized[31] crime scene photographs were displayed to the jury from a considerable distance away from the jury box, several jurors, who were expected to act the role of “potted plants”, began asking questions of the prosecutor about the photographs [32]. This caused the prosecutor to change the description of one photograph from that given by the testimony of the CST who identified it. After more questions, Judge Fred Bishop interrupted the trial and lectured the jurors for their interruptions[33]. In a trial that lasted just over two weeks and was largely devoted to DNA testimony, Chapel was convicted largely on the technical basis of the DNA found in the blood spot in his unit and the several pinpoint bloodstains on his rain jacket. He was sentenced to two life terms plus 5 years all to run consecutively.

Post Trial Activities

On October 3, 1995, lead defense attorney Johnny Moore filed an appeal from the verdict but then allowed the appeal to be denied for failure to prosecute. Petitioner Chapel was unaware of the appeal and still does not know its contents. Based on Moore’s behavior during Petitioner’s trial, this appeal was just another “going through-the-motions” action. The fact the he failed to prosecute the appeal in the higher State Courts seems to verify that conclusion.

The Petitioner by this time had a well-founded fear of Gwinnett County attorneys, and there was no further activity in Petitioner’s case until the middle months of 1996 when the National Police Defense Foundation (NPDF) became involved in the case. Without dwelling on the nature and efficacy of this organization, it can be remarked that the organization donated only $300 to Petitioner’s cause. Two individuals, Attorney Randy Mott and Investigator Boris Korczak of Washington, D.C., not employees but only related indirectly with the NPDF, contacted the Petitioner’s family with a contract for modest fees and reimbursement of expenses. The pair had only one face-to-face meeting with the Petitioner when first engaged and no other direct communications. Petitioner did not even have a chance to review the new trial motion before appearing in court for the hearing.

Mott and Korczak had a different agenda than the Petitioner’s in their investigation. The pair was more intrigued by the rumored police drug activities and corruption in Gwinnett County than in exonerating their new client. Mott had been a successful environmental attorney in Washington, D.C. and Korczak his chief investigator. When Mott’s marriage failed, his personal and professional life crumbled and Korczak’s fortunes went south right along with Mott’s. The two were seeking to rehabilitate their professional careers by “blowing the lid off” the corruption in Gwinnett County government by using the publicity such a successful effort would bring. Thus, much of their attention in their investigation was directed toward that end.

The most important piece of evidence developed in the NPDF investigation the existence of the victim’s purse, the recovery of which was accidentally disclosed by Captain John Latty in an interview with NPDF Investigator Boris Korczak. Korczak did develop additional pieces of important evidence, but he and others did not recognize their importance at that time. Their efforts to represent Chapel in Gwinnett County Superior Court were finally successful, and on or about April 28, 1997, Johnny Moore withdrew as Petitioner’s attorney of record, and another Gwinnett County attorney, David Whitfield was temporarily appointed until Mott could reactivate his Washington, D.C. bar membership and license to practice. A Georgia attorney was required to assist Mott, and he recruited Atlanta Attorney John Pickens Pro Bono services. Pickens was not active in the investigation and took little part in court proceedings.

At the motion for new trial, several of the new witnesses the NPDF recruited refused to testify in open court about the information they gave the investigation in private, and because of the focus of their investigation, Mott was not well equipped to cross-examine District Attorney Danny Porter’s rebuttal witnesses. As a result, the motion for new trial was denied, and an appeal to the Georgia Supreme Court was developed.

Georgia Supreme Court Decision

Petitioner appealed to the Georgia Supreme Court and was denied [34]. In its decision, that Court described the Prosecution’s case as follows:[35].

The evidence viewed in the light most favorable to the prosecution shows that on April 3, 1993, Ms. Thompson reported a burglary to the Gwinnett County police and Chapel was the officer who responded to the call. Ms. Thompson told Chapel that she had $14,000 cash hidden in her trailer home and that someone had stolen $7,000 of it and returned the remainder to its hiding place. She also told him that she and her son Michael Thompson lived alone in the trailer. Chapel told Ms. Thompson he suspected that her son had stolen the money. Ms. Thompson agreed but did not want to press charges. Chapel told her that he would try to retrieve the money. Ms. Thompson told several friends that she was planning to meet Chapel because he wanted to compare serial numbers on bills in his possession with serial numbers on her remaining money. On the evening of April 15, 1993 Ms. Thompson was shot in the head while she was seated in her parked car at a muffler shop on Peachtree Industrial Boulevard. Her remaining money was never recovered.

The state presented

(1) DNA evidence showing that a spot of blood in Chapel's police car matched the blood of the victim, [Circumstantial evidence shows the blood in a place operationally inaccessible to a police officer, and the lack of any other solid evidence against Chapel indicates the blood was planted by police in a perversion of DNA technology and was used as a “Red Herring” at Chapel’s trial.]

(2) Witnesses who saw two cars, one of which was a Gwinnett County police car at the muffler shop between 9:30 and 10:00, [An independent study and other evidence proves the precise time to be between 9:57 and 10:03 PM, a time other evidence proves it physically impossible for Chapel to be in that driveway.]

(3) Testimony from Officer Stone that Chapel was at the fire station that evening and that he left between 9:20 and 9:30, [This testimony was impeached by Stone himself just after the murder in an oral statement to Captain Davis, a written statement to Chief Carl White and telephone records showing the time Chapel left the firehouse to have been between 9:57 and 10:00.]

(4) A witness who saw Chapel driving on Peachtree Industrial Boulevard near the muffler shop around 9:30 or 10:00; [Independent study and the physical characteristics of that area, kept hidden from the jury, prove it was impossible for the police car in the driveway to have been the same police car that passed the witness where the “so called” identification was made.]

(5) Evidence that Chapel was facing an IRS verification audit with the potential of $4000 in additional tax liability [This evidence is speculative at best. Some audits result in refunds.] And that he owed a friend $1400 [This was a handshake business loan, all in crisp new $100 bills, for business advertising a few weeks before the murder and accounts for Chapel’s spending around the time of the murder.],

(6) Witnesses who saw Chapel spending $100 bills, [The only credible instance was $600 purchase of advertising T-shirts for Chapel’s small business gym to fulfill the conditions of the $1,400 loan.]

(7) A witness who saw a large sum of money in the purse of Chapel's wife, This witness had severe credibility problems and was contradicted by testimony from Chapel and an affidavit from his wife that the envelop contained only her waitress tips, and there were no $100 bills.] And

(8) Witness who said that Chapel responded to a call a little after 10:00 the night of the murder, refused to assist the complaining witness, and left, saying he had problems of his own. [This testimony was contradicted by the witness’ wife[36] whose statement, indicating Chapel acted politely, professionally and effectively, Chief Investigator Burnette^[37] memorialized in his well-kept note-log]. Besides, the statements of both of these witnesses prove that since without Stone’s perjured testimony, it is now certain Chapel left the firehouse between 9:57 and 10:00 and arrived at the witness’ home on the other side of town from the muffler shop just after 10:00 PM[38], it was just not physically possible for him to be anywhere near the muffler shop at the time of that blue light activity.

Isolation at Reidsville State Prison

Before his trial, Petitioner was continually incarcerated in either the Gwinnett or the neighboring Hall County jails. After his trial, Petitioner was incarcerated in the Georgia State Prison at Reidsville Georgia in virtual solitary confinement until early this year when he was transferred to Wayne State Prison nearby. Wayne State Prison is a place of incarceration for those convicted of crimes who had been in the legal or law enforcement professions. Petitioner should have been transferred to Wayne soon after he was first sent to a state prison, not 10 years after he was first incarcerated.

While at Reidsville Prison, Petitioner was kept in his cell 23 hours a day with 1 hour allowed for exercise in the yard with other such prisoners. That hour seemed a privilege and not a right. Depending on the staffing and any other such reasons, the hour of exercise could be and often was cancelled or otherwise withheld. During this entire period, Petitioner’s opportunities to exercise a duly diligent investigation of the factual predicate of his case claims was non-existent. Outside telephone communications were severely restricted to his family and a few friends. Visits to the limited prison law library were difficult to schedule and often canceled, and, because he simply did not know of the State misconduct involved in his conviction, Petitioner and his family were unsuccessful in securing any pro bono legal assistance from outside because of the distasteful nature of his conviction. These conditions clearly meet the “exceptional circumstances” provision of Steed v. Head, and the “extraordinary barrier” provision of Jones v. Morton, both of which permit equitable tolling.

207. See, e.g., Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000) (permitting equitable

tolling when petitioner can show exceptional circumstances that are beyond his control and

unavoidable with diligence); Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) (allowing equitable tolling in three circumstances, if the petitioner was actively misled by the defendant, if there was an extraordinary barrier to petitioner asserting his rights, or if petitioner timely asserted his rights unwittingly in the wrong forum)[39].

The Georgia State Habeas Corpus Research Begins[40]

After the Georgia Supreme Court denial, it is there the case would sit until January of 2000 when the now Prisoner Chapel was able to recruit a newly retired, highly skilled researcher, who had also been an alternate juror at his trial. This juror had vast experience over a range of private industry and government, including the military, and was experienced in resolving highly complicated problems containing a great deal of conflicting information. The Juror’s research then began immediately, but the first cracks in the state cover-up did not appear before early in that summer. These first cracks were then continuously exploited until now the trickle of discovery has become a virtual torrent. The researcher also acts as Petitioner’s clerical assistant and technical consultant.

Federal Court Proceedings

From the time of his incarceration at the Georgia State Prison at Reidsville in September 1995 until January 13, 1999 when Attorney Randy Mott resigned, Petitioner had continuous representation by Attorneys Johnny Moore and Randy Mott. Neither of these advocates saw fit to inform him of the 1-year time limit provision of the AEDPA legislation, and the provisions of his confinement were such as to limit his contacts and movements. Because of these conditions of incarceration, it was not until Petitioner began to construct his federal habeas corpus appeal that he became aware of the time limitations of the AEDPA. When Petitioner complained to the prison officials at the Reidsville about their responsibility to notify inmates of such important legislation, those officials were unable to demonstrate that such notification was made by any means. Petitioner is aware that such responsibility ultimately was his own but feels that it is important to relate this information as just one more demonstration of where the “system” failed him.

On December 3, 2003, Petitioner filed a “Motion for Equity”, attached as an Appendix “H” to this document that pointed up the vast differences in the resources available to the state and those available to him. It was shortly after filing that motion that Petitioner was transferred to Wayne State Prison where conditions were dramatically improved and law library access became better, but still was limited and scheduled. Petitioner’s Motion for Equity was denied as moot when the Atlanta District Court denied his motion for a “Certificate of Appealability” (COA).

An appeal to the United States Court of Appeals for the Eleventh Circuit was then undertaken, but the appeal was denied on August 23^rd of this year based on the AEDPA 1-year time limit in 28 U.S.C. § 2244(d)(1) and Petitioner’s failure to satisfy the requirements of 28 U.S.C. §2253(c) citing a failure to meet the “second prong” of Slack’s test.

Slack’s Second Prong

Second, when the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue (and an appeal of the district court's order may be taken) if the prisoner shows at least that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 478 (2000).

Petitioner’s Federal Habeas Corpus appeal was thus clearly procedurally barred by the AEDPA 1-year time limit and his Constitutional claims that were ruled “without merit” in the only instance of a decision that addressed those claims directly – that of the Magistrate Judge.

Petitioner then requested a reconsideration of that decision, and on October 7^th a two-judge panel of the Eleventh Circuit again denied his COA-IFP applications. In addition to Slack, at 484, the Reconsideration Panel also cited Johnson v. Alabama, 256 F.3d 1156, 1171 (11^th Cir. 2001) and Wyzkowski v. Dep’t of Corr., 226 F.3d 1213, 1218-19 (11^th Cir. 2000) presumably to more completely include Petitioner’s claim to the AEDPA 1-year time limit exceptions at 28 U.S.C. § 2244(d)(1)(D), denying the years long efforts to discover the factual predicate of his claims, and 2244(d)(1)(B) that frustrated that discovery effort.

REASONS FOR GRANTING THE WRIT

As to the Matter of Question 1

Are Pro se, habeas corpus petitioners without appointed counsel severely disadvantaged by procedures of federal district courts in violation of the due process and equal protection provisions of the Constitution of the United States?

Today’s adversarial system of law is simply the modern form of “Trial by Combat”. In an economic society where money has replaced brute strength, disputants are free to hire a champion for their cause instead of depending upon their own intelligence, skills and experience to prevail. The new champions are called lawyers. With sufficient money, the system works well; with enough money, the system can be manipulated; and with little or no money, the system works very badly, if at all. In criminal trials and appeals, an indigent defendant is guaranteed legal counsel, but since such counsel is selected and paid for by the state, such counsel’s loyalties and strength of advocacy for whom and to whom cannot always be easily determined.

If unsuccessful in his efforts, a now incarcerated prisoner can reach back to a period even before the Magna Carta and petition the courts for a writ of habeas Corpus to remedy what he or she believes to be an illegal imprisonment. Most such prisoners deplete their own and their family and friends available assets very quickly, and, since habeas corpus is a civil procedure, and usually the state will not hire counsel for them to pursue their claims, they must pursue habeas corpus Pro se. This simply means that they are on their own against the power of the state and must represent themselves with little no expectations of legal assistance in their quest for freedom. In recent years however this Court, The United States Supreme Court, has recognized this assault on equitable contests, and certain limited remedies have been instituted.

This Court has long been concerned with discrimination against the indigent. In Anders v. State of Cal., 386 U.S. 738, 741 (1967), Justice Clark held:

Beginning with Griffin v. People of State of Illinois, 351 U.S. 12 (1956) where it was held that equal justice was not afforded an indigent appellant where the nature of the review 'depends on the amount of money he has,' at 19, 76 S.Ct. at 591, and continuing through Douglas v. People of State of California, 372 U.S. 353 (1963), this Court has consistently held invalid those procedures 'where the rich man, who appeals as of right, enjoys the benefit of counsel's examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself.' At 358, 83 S.Ct. at 817. Indeed, in the federal courts, the advice of counsel has long been required whenever a defendant challenges a certification that an appeal is not taken in good faith, Johnson v. United States, 352 U.S. 565 (1957), and such representation must be in the role of an advocate, Ellis v. United States, 356 U.S. 674, 675 , 975 (1958), rather than as amicus curiae.

Now in Anders, This Court was faced with the problem in determining the extent of duty of a court-appointed appellate counsel when that attorney has conscientiously investigated the appeal, including an interview with the appellant, and determined there was no merit to the indigent’s appeal. This was the case in Anders, and the appointed-attorney sent a letter to the District Court expressing this conclusion and the petitioner’s wish for another attorney. When denied a new attorney, the petitioner filed Pro se.

After consideration of the attorney’s action [386 U.S. 738, 744], This Court found the appointed-attorney’s attempt to withdraw with a no-merit letter to the court was not enough to satisfy his role as advocate, and further:

The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. The no-merit letter and the procedure it triggers do not reach that dignity. Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. 3 His role as advocate requires that he support his client's appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court-not counsel-then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous, [386 U.S. 738, 744].

In Cruz v. Hauck, 404 U.S. 51 (1971), the Anders concept of substantial equality and fair process insured by an advocate was expanded to apply to certain civil processes, including habeas corpus.

United States Court of Appeals for the Eleventh Circuit, FRAP 47, I.O.P. 11 states as follows:

11. Pro se Applications. The clerk’s office processes and answers prisoner and other Pro se correspondence with the assistance of the staff attorneys’ office. When a Pro se petition is in the proper form for docketing and processing, it is routed to the staff attorneys’ office. This office prepares legal memoranda for the court on such interlocutory matters [preliminary decisions] as applications for leave to appeal in forma pauperis, certificates of appealability, and appointment of counsel, and on other Pro se matters.

Judging from vacancy announcements for such positions, Pro se clerks in federal courts are a mixed lot. Position requirements vary significantly from court to court. Some courts require law school graduates who have passed and been admitted to the bar. Others the same but can be in an inactive membership. Others require only graduation from law school, and still others require only current law school attendance. None of the vacancy announcements found required any experience in habeas corpus or Pro se law.

If a Pro se petitioner is without an already appointed attorney or does not have one soon after filing, that petitioner must continue Pro se and deal exclusively with the Pro se Clerk or his or her equivalent in the Clerk of Court Office. This means that the Pro se Clerk is that petitioner’s “go-between” link or representative to the court. In fact it could be said that the Pro se Clerk, with the help and guidance of the staff attorneys’ office, is the petitioner’s representative to the court and performs many of the counselor functions of an attorney, but he or she is not that petitioner’s advocate.

The Pro se Clerk’s only requirement as the representative of the petitioner then is to interpret the petitioner’s claims and assist in preparation of “legal memoranda for the court.” With the help and guidance of the staff attorney’s office, these memoranda include interlocutory “preliminary” decisions regarding the petitioner’s claims. Two questions arise from this procedure. 1) The titles of these documents submitted to the court may be “memoranda”, but in point of fact are they not case briefs? And 2) If the petitioner is not made aware of these case memoranda cum briefs submitted to the Court on his or her behalf and approve of their content, is the petition any longer that of the petitioner?

Since there is no requirement for advocacy on the part of the Pro se Clerk or the staff attorneys’ office, and there is no requirement for memoranda (briefs) to be furnished to the indigent petitioner, one further and significant question arises. Are the requirements of Anders, and its line, not violated by these procedures? Certainly the “Spirit of Anders” is being severely maligned.

No one in his right mind chooses indigence, and the total available resources of most of us would be used up quickly at $700.00 per hour plus in a trial and direct appeal process and incarceration serves only to preserve that penury. The indigent Pro se, habeas corpus petitioner deserves better. At a minimum, such a petitioner should be furnished copies of the memorandum cum brief submitted to the court and be given sufficient time to comment on the material therein or to withdraw his or her petition. An appeals court is not the adversary of the Pro se, habeas corpus petitioner. It is his or her judge.

As to the Matter of Question 2

Did The District Court Magistrate Judge exceed his authority in his “no new evidence proffered[41]” 28 U.S.C. § 2244(d)(1)(D) effective summary denial of the merits[42] of Petitioner’s claims, and in characterizing Petitioner’s Federal habeas corpus petition as a simple rehash of evidence already presented to the State without serious examination of either body of evidence in direct contravention of Petitioner’s massive and well documented evidence, the rules[43] of this Court[44] and its established body of law regarding such dismissals?

The only mention of the merits of Petitioners claims are contained in the “Magistrate Judge’s Final Report and Recommendation”, dated December 2, 2003, and adopted as his own by the Federal Court District Judge. After establishing the AEDPA one-year time limit for filing had expired, the Magistrate Judge went on:

Petitioner contends, however that § 2244(d)(1)(D) applies in this case and that his federal habeas corpus petition was timely filed after he discovered the factual predicate upon which his claims are based. [Doc. 6]. Petitioner’s contention is without merit. Petitioner does not proffer any evidence or facts not already considered by the State Courts. Indeed, Petitioner states in his supplemental petition that the Supreme Court of Georgia “failed to correctly interpolate the importance of the new evidence.” [Doc. 3 at p. 31]. In his petition, supplemental petition and response to the state’s motion to dismiss, Petitioner simply rehashes the evidence already presented and argues why the State Court’s rulings regarding the sufficiency of the evidence are erroneous. Accordingly, the claims raised by Petitioner in his federal habeas corpus petition are barred by the statute of limitations.

To first examine this extraordinary paragraph logically, the Magistrate Judge asserts two general terms:

1) Petitioner’s contention is without merit. Petitioner does not proffer any evidence or facts not already considered by the State Courts. And

2) In his petition, supplemental petition and response to the state’s motion to dismiss, Petitioner simply rehashes the evidence already presented [to the State Courts].

There is a legal maxim, that “A deceiver[45] deals in general terms.” Without specific and concrete examples, general terms are not only logically invalid but can be dangerous. Apparently recognizing this, the Magistrate Judge sandwiched a single example between these two general terms:

Indeed, Petitioner states in his supplemental petition that the Supreme Court of Georgia “failed to correctly interpolate the importance of the new evidence.

First, the word “interpolate[46]” is a typographical error that distorts and renders the entire sentence meaningless. With only a modicum of interpretive flexibility, the Magistrate Judge could easily see from the context that the Petitioner meant that word to be “interpret.” Second, the sentence was lifted from Ground 5, a 20 line minor ground inadequately labeled “Newly Discovered Evidence.” A more precise labeling would have been “Newly Discovered Evidence Stemming from Petitioner’s Motion for a New Trial and Presented to the Georgia Supreme Court.” Third, the 20-line context of this ground easily explains that the information pertains only to that presented to the Georgia Supreme Court and does not include information presented to the State Habeas Court in other post-conviction proceedings. Thus the Magistrate Judge’s contention that the facts and evidence “considered by” and “presented to” the State were all inclusive constitutes just another generalization that is patently false.

From a legal standpoint, the Magistrate Judge’s cited no federal rule or statute or case law as an authority to support his summary denial of the merits of the Petitioner’s complaint. The Petitioner assumes the Magistrate Judge relied upon Rules 4 and 5 of “Rules Governing Section 2254 Cases, Rules and Statutes on Habeas Corpus”, Post AEDPA, April 24, 1996. However Rule 4 is inapplicable because the Respondent was required to file a timely answer to Petitioner’s complaints, and the compliance with the terms and requirements of Rule 5 by the Magistrate Judge was so inadequate as to render the rule inapplicable.

Even without the documentation contained in Petitioner’s “Supplemental Petition [47]”, the Magistrate Judge’s summary denial of Petitioner’s merits conflicts with federal court rules, especially FRCP Rule 8(f)[48] and with the case law rulings of this Court: The United States Supreme Court guidance and prohibitions as expressed in Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 507 (2002), citing Conley v. Gibson, 355 U.S. 41, 47 (1957), Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) and other such Conley referenced cases.

A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could not be proved consistent with the allegations.

Petitioner interprets this ruling to mean that the State must find a provable set of facts that are inconsistent with the allegations or claims of a petitioner before a court may dismiss his or her complaint. The evidence submitted by Petitioner is rock solid and based almost entirely on the record, and the one or two minor exceptions, e.g., Private Investigator Korczak’s interview with then Captain Latty where the discovery of the victim’s purse came to light, are entirely consistent with that record. There have been no discoveries made in the concentrated research that are inconsistent with Petitioner’s claims; while the State’s case has been shown by those claims to be at best a house of cards.

The State itself has stubbornly refused to offer anything but its demand for an AEDPA procedural bar, although in its “Response to Petitioner’s Motion for Equity” seemingly authored by the entire senior staff of the Attorney General’s Office, the State seems to acknowledge the existence of Petitioner’s other claims:

Respondent strenuously opposes this motion, particularly since it deals with conditions of Petitioner’s current confinement and is not relevant to any of the issues presented in the instant habeas corpus case. [Page 3]

The federal petition is certainly not a simple rehash of earlier submitted evidence. Petitioner’s supplementary petition documents almost 100 instances of misconduct by the state[49], and consists of 65 pages of text, at least 31 case references, 77 attachments, numerous references to the testimony and events in the trial transcript, and at least 55 backward references to the documentation contained in his Georgia Habeas Corpus Petition. The Georgia habeas petition is only a starting point for Petitioner’s federal habeas corpus petition (further discussed below).

Most importantly, the petitioner’s reference to the newly discovered evidence presented to the Georgia Supreme Court was mainly a reference to the victim’s missing purse that was recovered about six months after the trial. The recovery of Mrs. Thompson’s missing purse was so vitally important it potentially had the power by itself to invalidate the entire of the prosecution’s case. The victim’s missing purse pervading almost every aspect of Petitioner’s trial. Most importantly it was the repository for her missing $7,000 and the agent of blood transfer from her bloody car into Petitioner’s police unit that lead to the DNA evidence, and was always in the background of the Prosecution’s case. District Attorney Danny Porter’s abrupt change of attitude toward the importance of the purse during the trial and then after its recovery was almost magical.

Since the Magistrate Judge has selected the Georgia Supreme Court proceeding from which to select the entire documentation to support his “no-merit” decision, it is only fair to the Petitioner to allow him to demonstrate the importance of the victim’s missing purse in the context the Prosecution’s case as presented and described by the Georgia Supreme Court, now reduced to a shattered ruin by the discovery of Petitioner’s “factual predicate” as demonstrated by his federal habeas corpus petition. For this see ~~Appendix “J”~~ below[50].

Only the Magistrate Judge knows why he felt the sentence he selected to document his opinions had the power to invalidate an entire body of evidence, but in Conley v. Gibson, Supra, the United States Supreme Court has specifically rejected any type of such a seemingly clever basis of conclusion.

The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome, and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits. Maty v. Grasselli Chemical Co., 303 U.S. 197.

In his continuing development of the complete factual predicate of his claims, Petitioner’s federal habeas petition is based upon evidence and facts found or realized after his state habeas was denied and confirmed. Only information sufficiently necessary to illustrate and validate the impact of these new findings was brought forward into the federal habeas. The new findings could not possibly be understood if they were presented in an information vacuum. Since the federal habeas contained many references to the documentation in the state habeas, copies of Petitioner’s Georgia habeas corpus petition were submitted with the federal habeas to the district court.

The State Habeas Court litigated only one[51] of the 16[52] grounds submitted to that Court. The other 15 grounds were procedurally barred[53]. The State habeas judge did gratuitously comment, obiter dictum, on some of the remaining, procedurally barred grounds in an attempt to lessen their importance, but seen in the light of the evidence submitted in the federal habeas petition, those comments[54] pushed the concept of “harmless error” beyond its limits and now just seem foolish. Besides, these subjective, “pot-shot” opinions cannot be considered the equivalent of serious litigation. Remember it was only in the summer of 2000 that the state cover-up began to unravel. The first, skeleton state habeas petition of July 4, 2000 reflected that, and the replacement habeas submitted on 12/20/2000 indicates the amount of progress toward discovery of Petitioner’s factual predicate at that time. The federal habeas petition further demonstrates the duly diligent effort of discovery, and there has been even more progress made and provided in the various other submittals.

In those first submittals, there was totally new evidence that was not yet discovered and thus unavailable to the State Habeas Judge: 1) All of the twenty or more alterations of the crime scene photographs were discovered after final state litigation and therefore not available. 2) An independent research study based upon the testimony of Chief Investigator Jack Burnette at the preliminary hearing and information discovered in his well kept notes plus all of the driver witnesses statements, the testimony of those called and the extraordinary weather conditions that night showed almost to the minute the time these witnesses passed the muffler shop driveway. This study proves the prosecution’s theory of the time the murder was committed and to other conclusions based upon skewing and otherwise manipulating `the information these driver witnesses provided to be pure nonsense[55]. 3) Many additional instances of state misconduct were discovered after the state habeas decision and confirmation, even after the federal petition was submitted and in subsequent submissions to that Court, even after the denial by the 11^th Circuit Court. These last discoveries[56] are extremely significant as they explain another important method of crime scene photograph alteration, and these altered photographs have yet to be submitted to any court.

The Magistrate’s Unintended Target[57] -- The Victim’s Missing Purse

The missing purse loomed large during the trial in spite of the clear admonitions of this Court[58]:

[50] Implying the existence of additional evidence not formally before the jury severely impairs the likelihood of a fair trial. In Berger v. United States, 295 U.S. 78, 88-89, 55 S.Ct. 629,

633, 79 L.Ed. 1314 (1935), the Supreme Court reversed a conviction when the prosecutor through questioning and argument implied personal knowledge of additional evidence. United States v. Eyster, 948 F.2d 1196 Par. [50] (11th Cir. 1991).

Allegedly Mrs. Thompson feared her son Michael would steal the last of her inheritance so she carried with her, supposedly in her purse. The prosecution theorized that purse contained the remaining $7,000 and was removed from Mrs. Thompson’s automobile by the petitioner after he murdered her. The missing purse was referred to constantly during the trial, and County District Attorney Danny Porter stated without equivocation at least once during the trial that the purse was the only possible transfer agent for the victim’s blood between her bloody automobile and the petitioner’s patrol car.

Q. There's been no evidence anything else happened. That's your theory. There's been no evidence that anything happened. The evidence is Steve Cline locked the car, and Nancy Jenkins went out and it was locked, and it was unlocked with your keys. So do you have any plausible, reasonable explanation to give this jury of why Emogene Thompson's blood was in your patrol car other than the fact that it transferred from the purse that you took out of her car after you shot her?

A. I have no plausible reason why Emogene Thompson's blood would be in my car, if it was, in fact, her blood.

MR. PORTER: I don't have any other questions. [Trial, line 6260, 9/2/95]

Contrast that position with the position on Mrs. Thompson’s purse District Attorney Porter would maintain before the Georgia Supreme Court after the purse had been recovered. In the “Brief of the Appellee”, Porter’s position on the purse changed significantly:

The fact that the [recovered] purse had no blood or fingerprints is indicative of absolutely nothing. It is just as likely that a supporter of the Appellant planted the purse as it is that the “real murderer” planted it. P.11

If this latter suggestion of District Attorney Porter had any merit at all, Mrs. Thompson’s purse, sans blood and fingerprints, would have somehow appeared before Petitioner’s trial, thus robbing Mr. Porter of much of his thunder about “the bloody purse.”

Some six months after the trial, the victim’s missing purse was found by accident by a child at play. It was buried in the thickly wooded area behind the victim’s home. After its recovery, the police used highly technical tests including luminol, but no blood or fingerprint evidence could be found on the purse or its contents. Thus the petitioner was entirely correct when he contended the Georgia Supreme Court was not fully apprised of the full significance of that evidence.

The Georgia Supreme Court did admit that the purse evidence pointed to the victim’s son Michael as the murderer, but then diminished the importance of the purse recovery using the new trial motion hearing testimony of GCPD Captain John Latty that the area was “thoroughly searched” about one year after the murder. Now, closer examination of Latty’s earlier written statement regarding that search indicated it was conducted by only two middle-aged officers over a very large area that included several acres of thick woods, and Latty’s expressed timeline indicated that the search could not have begun until ½ hour after the end of civil twilight and thus must have been conducted in the dark.

There is one other significant point regarding the recovery of the victim’s purse. The purse was accidentally found buried in several acres of thickly wooded land behind the victim’s home by a neighborhood child playing there on March 6, 1996. On March 26^th, the information gathered was forwarded to the Gwinnett County District Attorney Danny Porter. The District Attorney then held the purse and accompanying in secret until January 10, 1997, and it was disclosed to the defense then only because GCPD Captain John Latty let the purse recovery slip during a chance interview with a defense investigator at that time. This withholding of critically important evidence is especially significant in view of the effective date of the AEDPA Act of 1996, April 24, 1996.

As to the Matter of Question 3

In the context of the suspension clause[59] of the Constitution of the United States, does (f)actual innocence as opposed to “probable innocence[60]” or “technical innocence[61]” toll the time limit in 28 U.S.C. § 2244(d)(1), and, specifically, will the AEDPA time limit procedural bar prevent Petitioner from demonstrating his (f)actual innocence in this, his first federal habeas corpus petition?

There is a continuing confusion that causes, to a greater or lesser extent, litigation skewing and decision bias among the various lower federal Courts the potential for constitutional violation of the suspension clause where an actually innocent habeas corpus petitioner violates the AEDPA 1-year time limit filing date and the tolling provisions contained in § 2244(d)(1) cannot bring that date into compliance. That conflict is starkly illuminated by the 11^th Circuit’s recent decision in Wyzykowski v. Dept. of Corr., 226 f.3d 1213, 1218-19 (11^th Cir, 2000) where the concerns inherent in this question are raised and other concerns inferred.

Wyzykowski's argument raises a troubling and difficult constitutional question. Where Petitioner can show actual innocence and 2244(d)'s[62] limitation period has expired, does the bar to filing a first federal petition constitute an unconstitutional suspension of the writ of habeas corpus? The question raises concerns because of the inherent injustice that results from the conviction of an innocent person,and the technological advances that can provide compelling evidence of a person's innocence. The courts faced with Suspension Clause challenges to 2244(d) have been able to avoid deciding the difficult constitutional issue of whether the clause requires an exception to 2244(d) for actual innocence because the petitioners were unable to make a showing of actual innocence[63]. See Lucidore v. New York State Division of Parole, 209 F.3d 107 (2d Cir.2000).

Herein lies the conflict. In the absence of clear and decisive direction from this Court on this stubborn problem, the lower federal courts and probably even the state courts will retain a natural bias in favor of dismissal of the merits of any petitioner’s appeal, even where there may be “compelling evidence” of his or her actual innocence. That bias arises because the alternative requires facing difficult constitution issues and the inherent conflict between actual innocence, AEDPA and the suspension clause and to difficult jurisdictional conflict as in Lucidore. None of the lower courts have yet to make that choice, and this has lead to decisions on petition merit that can be patently ludicrous as in the case of the Petitioner.

Except in passing reference to the more difficult establishment of a fundamental miscarriage of justice by actual innocence, the courts have been almost silent about the “Sawyer” standard of actual innocence that but for constitutional error established by “clear and convincing evidence”, no reasonable juror would have found for guilt.” Sawyer v. Whitely, 505 U.S. 333, 338-347 (1992). Instead they have preferred the less stringent “Carrier” standard[64] as put forward in Schlup v. Delo, 513 U.S. 298, 313-332 (1994) to show that “a constitutional violation has probably resulted in the conviction of one who is actually innocent:”

Held: The standard of Murray v. Carrier, 477 U.S. 478 – which requires a habeas petitioner to show that "a constitutional violation has probably[65] resulted in the conviction of one who is actually innocent," id. at GO>496 -- rather than the more stringent Sawyer standard, governs the miscarriage of justice inquiry when a petitioner who has been sentenced to death raises a claim of actual innocence to avoid a procedural bar to the consideration of the merits of his constitutional claims. Pp. 313-332.

Because this holding then lacks an unequivocal determination, the Schlup court was able to avoid the constitutional problems involved in overcoming the AEDPA time limit bar through use of its actual innocence determination as a “gateway” to consideration of Schlup’s other constitutional grounds. This tactic had the advantage of insuring the consideration of Schlup’s merits while avoiding both a miscarriage of justice and the tolling provisions of 2244(d). However the problems of litigation skewing and decision bias in the lower Courts still remains, and the question now is how often will this Court accept the convolutions necessary to pull itself off the horns of this dilemma?

The 11^th Circuit cites the expiration of the 1-year time limit in 2244(d)(1)(A) and states Petitioner has failed to meet any of the related tolling provisions in 2244(d)(1) even though Petitioner could demonstrate, if allowed by the 11^thCircuit, not only his actual innocence but also in compliance with the provisions of 2244(d)(1)(D) the establishment of a date on which the factual predicate of Petitioner’s claims was discovered, through the application of due diligence, that is well within the 1-year limit. Petitioner relates that date[66] to the discovery of the first crime scene photograph alteration and arranged notification, in writing, of the Attorney General of The State of Georgia of this discovery on April 27, 2003. Petitioner filed this first federal habeas claim on August 24, 2003.

The 11^th Circuit also citing § 2253(c)(2) as its reason for not granting the COA has denied Petitioner relief clearly stated as only if the Petitioner can show a substantial denial of a constitutional right(s) a showing now denied Petitioner by withholding its approval of the COA.

The refusal of the district court to allow Petitioner to prosecute his appeal, in that he has not been afforded sufficient opportunity to demonstrate to the lower courts that his claims are not frivolous, constitutes a most sweeping departure from the accepted and usual course of judicial procedures, Farley v. United States, 354 U.S. 521, 521-523 (1957), [Pre-AEDPA].

Held: petitioner has not been afforded an adequate opportunity to show the Court of Appeals that his claimed errors are not frivolous, so as to enable that Court to review properly the District Court's certification that the appeal was in bad faith. Accordingly, the judgment of the Court of Appeals is vacated, and the cause is remanded to it for further proceedings. Pp. 521-523.242 F.2d 338, judgment vacated and cause remanded.

Exercise of this Court’s power of supervision would accordingly be called for even if the Court of Appeal decision affected only the rights and interests of this petitioner alone.

This case involves the denial of the due process clause for Petitioner’s claim of actual innocence that is a valid claim by inference for tolling the 1-year limitation set forth in 2244(d)(1). The Constitution, clearly, the 11^th Circuit Court and this Honorable Court, by implication, have set forth the principle that the 1-year time limit can and should be tolled where there is shown by “clear and convincing evidence that but for constitutional error, no reasonable juror would find Petitioner Guilty[67].” To accept that it was the intent of the United States Congress to punish actual innocence in its construction of the AEDPA legislation is just not rational. It would be the legal equivalent of “throwing the baby out with the bathwater.”

The 11^th Circuit has further ignored this Court’s direction for satisfying the “actual innocence” standard as described in Schlup v. Delo 513 U.S. 299, 324 (1995).

To satisfy Carrier's "actual innocence" standard, a petitioner must show that, in light of the new evidence, it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt. The focus on actual innocence means that a district court is not bound by the admissibility rules that would govern at trial, but may consider the probative force of relevant evidence that was either wrongly excluded or unavailable at trial. The district court must make a probabilistic determination about what reasonable, properly instructed jurors would do, and it is presumed that a reasonable juror [513 U.S. 300] would consider fairly all of the evidence presented and would conscientiously obey the trial court's instructions requiring proof beyond a reasonable doubt. The Carrier standard, although requiring a substantial showing, is by no means equivalent to the standard governing review of insufficient evidence claims. GO>Jackson v. Virginia, 443 U.S. 307, distinguished. In applying the Carrier standard to Schlup's request for an evidentiary hearing, the District Court must assess the probative force of the newly presented evidence in connection with the evidence of guilt adduced at trial. The court is not required to test the new evidence by a standard appropriate for deciding a motion for summary judgment, but may consider how the submission's timing and the affiants' likely credibility bear on the probable reliability of that evidence, pp 327-332.

This Court toiled mightily with the threshold for “actual innocence” issue attempting to decide between the Sawyer and Carrier standards. The simple difference between the two standards seems quite clear. To paraphrase the above passage, the Carrier standard, the less stringent of the two, is “probable innocence”, based upon liberally interpreted “new evidence either wrongly excluded or unavailable at trial.” The Court must then make a “probabilistic determination” as to what reasonable [jurors] would do when the evidence is added to the already admitted evidence with which there is apparently no quarrel. The Sawyer threshold standard requires a petitioner to demonstrate not “probable innocence” but “actual innocence” and not by added evidence “wrongly excluded or unavailable at trial" but by the “totality” of evidence that must be assumed to include evidence that would demonstrate the illegality of that admitted at trial and is sufficiently “clear and convincing that but for a constitutional error, no reasonable juror would have found him guilty”. The Sawyer threshold is more stringent in its requirements but the determination would be much less subjective than the Carrier Threshold.

In Schlup, this Court opted for the Carrier threshold; however Chief Justice Rehnquist in dissent[68] favored the Sawyer threshold because it is more straightforward and less complex than that of Carrier and for other reasons. Importantly, in his dissent, the Chief Justice sounded a warning that he believed the Court's exegesis of the Carrier standard both waters down the standard suggested in that case, and will inevitably create confusion in the lower courts [69]. The truth of the Chief Justice’s caveat regarding “confusion in the lower Courts” has affected Petitioner’s case mightily. As suggested in the very first paragraph of the discussion of this question [p. 27] where the Petitioner complains of a continuing confusion in the lower Courts that causes, to a greater or lesser extent, litigation skewing and decision bias in the federal Courts because of a reluctance to force a potential constitutional crisis in the courts because of the inherent conflict between the Article 1 “suspension clause” and “actual innocence” as a tolling provision of 28 U.S.C. § 2244(d)(1). Failure to solve this problem has the potential for even more confusion in the lower Courts and more “workarounds” such as the Carrier solution.

Finally, the AEDPA time limit should also have been tolled under the provisions of 28 U.S.C. § 2244(d)(1)(B). It is only fair to point out the substantial disadvantages caused by agents of the state in keeping Petitioner in a virtual information vacuum with the conditions of confinement during his incarceration at the Georgia State Prison at Reidsville complained about in 2 above[70]. These same conditions also prevented Petitioner from constructing any kind of meaningful grounds to support a habeas corpus action. It was just as the time limit was reached in February 2000 that Petitioner was able to recruit skilled outside support necessary for such a filing, and it was not until mid-summer before the first cracks in the state’s cover-up appeared. After that, one discovery led to another until now Petitioner has almost a complete grasp of the state’s misconduct in his case. In support of Petitioner’s 2244(d)(1)(D) claim, any court can determine the progress of discovery by examining his court submissions since his first state habeas on July 4^th, 2000.

CONCLUSION

The Supreme Court of the United States should grant Petitioner Certiorari and thereafter vacate and remand his case to the lower courts where an evidentiary hearing as required under the holdings in Townsend [71] can be held to validate his claims. With one or two exceptions, Petitioner’s claims are documented by the inconsistencies found in the certified trial transcript and the statements taken by witnesses not called by police and district attorney investigators, by culpable physical evidence against him found to have been manufactured or otherwise altered by the police, by exculpatory physical evidence that was claimed to be “lost” or otherwise destroyed by the police and or the prosecution and by circumstances that were beyond human control such as the weather and the times for sunrise and sunset and the onset of full darkness.

This is Petitioner’s first federal habeas corpus petition, and this Court has consistently disapproved of a procedural “dismissal of a first federal habeas petition on equitable grounds.” The many claims advanced by the Petitioner and the requisite documentation of the supporting evidence is the product of concentrated research and analysis over a period of several years. The evidence of the State’s misconduct, gathered over what is now a 5-year period, is massive and consistent. In Lonchar, decided on April 1, 1996, three weeks before the enactment of AEDPA, this Court held:

Lonchar v. Thomas, 517 U.S. 314, 324 (1996). Lonchar was decided on April 1, 1996.

Id. The specific issue in that case was whether Rule 9(a) should be applied to a first habeas corpus

petition. Id. at 316. The Court held that a first federal habeas petition should not be dismissed for

reasons not encompassed within the framework of Rule 9(a). Id. at 322. Specifically, the Court

stated, “[d]ismissal of a first federal habeas petition is a particularly serious matter, for that

dismissal denies the petitioner the protections of the Great Writ entirely, risking injury to an

important interest in human liberty.” Id. at 324. The Court was aware of the statute of limitations

provision in the habeas reform bills in Congress at the time and cautioned, “the interest in

permitting federal habeas review of a first petition is quite strong,” and “it is particularly important

that any rule that would deprive inmates of all access to the writ should be both clear and fair.” Id.

at 328-330[72].

Petitioner was aware the nature of his claims unaccompanied by documentary evidence invited a first impression credibility problem; however the cavalier dismissal of that entire body of evidence provided to the district court magistrate judge can only be described more as autocratic distain rather than a reasoned decision by a court representing the government and people of the United States of America. In his “no-merit” decision, the Magistrate Judge opined the federal habeas to be a simple “rehash” of the state habeas because of one sentence pointing to a single piece of evidence considered years before by the Georgia Supreme Court. That opinion can be equated to a statement that the history of Europe is a simple rehash of the history of Luxemburg because of the “boxer rebellion” at the beginning of the Twentieth Century in China.

Petitioner feels that the applicability of his claim to 28 U.S.C. § 2244(d)(1)(D) and the related applicability to § 2244(d)(1)(B) are straightforward and easily subject to solid support by the evidence he puts forward. It is his claim of actual innocence that is demonstrated by the exact same evidence that may be in danger from the inherent bias in the lower federal courts because of the difficult constitutional issues caused by the absence of “actual innocence” from the tolling provisions of 28 U.S.C. §2244(d)(1) of the “AEDPA Act of April 26, 1996”. It is the conflict thus caused by “the Suspension Clause[73]” of the Constitution of the United States of America in the tolling provisions as discussed in Question 3 above that so far have defied final resolution by this Honorable Court.

Finally, Petitioner begs this Court, The Supreme Court of the United States of America, to recognize this case for what it truly is – an assault upon the Fourteenth Amendment of the Constitution of the United States of America by a corrupt Georgia County seeking to illegally protect its wealth and power by sacrificing, under color of law[74], their highly decorated top-cop, with 28 Commendations over his 8 years of service, a hero many time over.

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Michael H. Chapel, 845840

Petitioner, Pro se

Wayne State Prison

P.O. Box 219

Odum, GA 31555

APPENDIX A

USCA-11[75] Order Denying Appeal for Application for a COA[76] and Leave to Proceed IFP[77]

August 23, 2004

APPENDIX B

USCA-11[78] Order Denying Appeal for Reconsideration Application for a COA[79] and Leave to Proceed IFP[80]

October 7, 2004

Appendix C

USCA-11 Notification Of Receipt Of Court Of Appeals Denial Of Permission To Proceed IFP On Appeal To USCA-11

June 25, 2004

APPENDIX D

USDC-NDG-AD[81] Order Denying Motion To Proceed IFP To Appeal Court Order Of March 16, 2004 Adopting Magistrate Judge’s Final Report And Recommendation

June 18, 2004

APPENDIX E

USDC-NDG-AD Order Adopting Magistrate Judge’s Final Report And Recommendation

March 16, 2004

APPENDIX F

USDC-NDG-AD Magistrate Judge’s Final Report And Recommendation

December 2, 2003

APPENDIX G

USDC-NDG-AD Magistrate Judge’s Order To Respondent To Show Cause

September 22, 2003

APPENDIX H

Petitioner’s Motion For Equity

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

MICHAEL HAROLD CHAPEL, GDC 845840 )

)

Petitioner ) Prisoner Habeas Corpus

) 28 U.S.C. § 2254

v. )

)

HUGH SMITH, Warden ) CIVIL ACTION NO.

Georgia State Prison ) 1:03-CV-2655-CAP )

Respondent )

MOTION FOR EQUITY

Comes now Michael H. Chapel and moves this Honorable Court to grant equity to him as a Prisoner-Pro Se Petitioner in this action that will allow him to approach the efficiencies of those afforded Respondent and opposing counsel for those reasons as outlined in the following paragraphs.

HISTORICAL PERSPECTIVE

Since the founding of the United States and the establishment of its Constitution in the latter Eighteenth Century the Prisoner-Pro Se Petitioner enjoyed a rough parity in efficiencies as compared to opposing counsel representing Warden/Respondents in these actions. Both litigants were restricted to pencils and paper and to law libraries that were hot in the summer cold in the winter and a quality of content that could not be guaranteed. In the latter half of the Twentieth Century however, with the advent of computers and the many amenities of the modern office, that parity began to disappear until today it is almost non-existent.

Modern day attorneys who oppose Prisoner-Pro Se Petitioners sit comfortably in air-conditioned offices where the wealth of the entire body of legal and other knowledge can be seamlessly summoned with only a few keystrokes on their computers and with instant communication with the world using mail, Email, telephones, fax mail and other forms of computer communication. The modern day attorney has the luxury of face-to-face meetings with any and everyone and a staff to take care of routine tasks. Finally, these attorneys have modern day advantages unimagined in the past such as sending helicopters long distances to pick-up necessary witnesses[82].

The Prisoner-Pro Se Petitioner on the other hand is often confined to an uncomfortable cell for 23-24 hours a day, as is this Petitioner, with stringent controls on the amount of paper he may retain in his cell and is allowed only rare visits to the law library. Between these rare law library visits, the Prisoner-Pro Se Petitioner may or not be allowed to request cases from the law library, in this institution 10 per week, and such requests are only infrequently honored. Prisoner communication with the world is restricted to only mail and infrequent, unscheduled and very expensive access to a telephone that usually is reserved for family. Finally, the Prisoner-Pro Se is at the mercy of his keepers who are able to whimsically grant or deny him necessary access to the means for the prosecution of his claims and a Warden/Respondent who can arbitrarily change the rules of the institution that allow such prosecution as has been the case with this Petitioner during the length of his incarceration.

CONSEQUENCES

The loss of parity between parties affects the entire concept of “fairness” in the United States judicial system. is a civil process. Thus the prisoner without means or benefactors is forced into the role of Prisoner-Pro Se, but time limits and the requirements to show “due diligence” and comply with other requirements in the prosecution of his claims are the same for him as for those attorneys who represent the Warden/Respondent. In the case of this Prisoner-Pro Se Petitioner, time limits to respond, some as little as 10 days are simply unrealistic, and the requirements to show due diligence in the prosecution of his claims have been severely complicated by the conditions described above.

Petitioner now relies exclusively on regular United States mail for communications with his self-recruited research and clerical assistant[83] who is resident in another state. Thus on receipt of opposing materials and Court orders, Petitioner must first analyze such responses and prepare his own response and instructions for 1 or 2 or more days, mail his work, a journey of 3 or more days, to his research and clerical assistant for further research and clerical work that may take 1 or 2 or more days, wait another 3 or more days for the return mail and finally sign and return the final product to the Court, a journey of another 3 or more days. Requirements, to show due diligence and others are similarly complicated, mostly by the Warden/Respondent and his staff for the reasons stated above under consequences. Petitioner has no means to compel and relies on “open record” requests to gain the necessary documentary evidence to satisfy necessary requirements. Because of the vagaries to which he is subjected, the procurement of such information from the institution often resolves into a form of game strategy to gain the evidence.

LIMITATIONS

Petitioner recognizes the limitations of the Court in this situation. He further recognizes that the vast majority of Prisoner-Pro Se Petitions involve a single issue, or at most only a few straightforward issues that lack the size and complexities of the instant petition. Petitioner also recognizes that since this is a civil action and the Court has severe limitations on any financial or legal assistance it can render, he expects none and will meet any expense involved in the remedies he will propose through his own efforts and means. Petitioner further recognizes that his case is exceptional, and that all rules have exceptions.

Petitioner further recognizes the necessary financial, safety and good order requirements of the institution wherein he is incarcerated, and he is prepared to ask nothing that is not immediately within the rules of the institution, immediately available and without cost for the Warden/Respondent to grant and his staff to administer in the remedies proposed.

PROPOSED REMEDIES

The Prisoner-Pro Se Petitioner is by definition his own “attorney of record”, and as such should qualify for certain exceptional privileges normally granted to prisoners and to their attorney of record as enumerated below:

(1)

The Prisoner-Pro Se Petitioner be allowed visits from his researcher and clerical assistant in the rooms reserved for prisoner-attorney conferences, and that both he and his assistant be allowed to bring necessary conference materials into the conference room subject to search and approval by prison staff. Further, Petitioner and his research and clerical assistant be allowed necessary visitation during business hours outside of normal visiting days and hours, thus reserving these occasions for visits with his family.

(2)

The Prisoner-Pro Se Petitioner be allowed necessary telephonic communications with his research and clerical assistant outside of the normal telephone access schedules and procedures for the prison. Further, Petitioner and his research and clerical assistant be allowed to use telephone facilities not associated with the prison’s profit center system[84], and that Petitioner be allowed to use his research and clerical assistant’s “800” number for such communications to keep his costs down for such necessary legal communications.

(3)

The Prisoner-Pro Se Petitioner be allowed to use and maintain a personal computer in his immediate cell for his use in complying with due diligence and other requirements and for legal and other research. The facilities available on the Internet to opposing counsel give such counsel an extraordinary advantage over the Prisoner-Pro Se Petitioner, and those advantages could at least be somewhat balanced by this remedy.

Further, the granting of this remedy would eliminate the need for (2) above. This would avoid any complications for the institution that may be caused by the granting of any special considerations that may be involved in granting the provisions of that paragraph. A personal computer equipped with a wireless connection would allow Petitioner Email, fax mail, Internet and telephonic communication access without any wiring considerations other than power.

Petitioner’s research and clerical-cum-technical advisor, whose last position before retirement was as the Southeast Regional Director of Computer Systems and Regional Information Systems Security Officer[85], assures him and can assure the Court and the Warden/Respondent that foolproof restrictions can be imposed on such personal computer use. Petitioner, his technical advisor and the Warden/Respondent and his staff can negotiate the terms of such use for approval for the Court or can institute such use based upon any provisions imposed by the orders of this Court.

(4)

That this Court compel Warden/Respondent to furnish such information from prison records as needed and requested by Petitioner in order to demonstrate compliance with due diligence and other requirements of the law to further his case, either by means of subpoena or voluntarily at costs that are reasonable and reflect Petitioner’s meager resources. Petitioner is more than willing to negotiate such conditions with Warden/Respondent and to submit any dispute to this Court for arbitration.

CONCLUSION

Petitioner avers his lack of parity with Warden/Respondent and opposing counsel is both real and prejudicial to his efforts to establish his innocence. Without all of the modest remedies he proposes to this Court, this inequity will remain and can only deteriorate. Without Internet access, Petitioner cannot even view the WEB site[86] established for him with its massive information stores and careful analyses of that data. Warden/Respondent and opposing counsel can view, download and utilize that data to the detriment of Petitioner’s cause with only a few keystrokes, while Petitioner is arbitrarily denied such privileges and efficiencies. Such a situation adds to the inequity and prejudice already suffered by Petitioner and increases his burden in his attempt to prove his innocence.

Wherefore, for these and all other good, just and sufficient reasons, Petitioner begs this Honorable Court to grant the proposed remedies as described and to order and compel Warden/Respondent to implement them immediately.

Submitted this 1^st Day of December 2003,

MICHAEL H. CHAPEL, 845840

Applicant – Pro se

Georgia State Prison

Reidsville, GA 30499
PHILIP R. SULLIVAN

MOST RECENT ACTIVITIES

Civil Service/Military retired since January 3, 1997

EMPLOYMENT HISTORY

Food and Drug Administration, Southeast Regional Office. Atlanta. GA. 3/92-1/97

Regional Computer Center Director – Regional Information Security Officer

Independent Computer Programmer/Analyst and ADP Consulting Analyst. 10/89 - 3/92

Los Angeles/ Atlanta, GA, (Contracts with: AT&T, IBM, UPS, NABISCO, and others)

Integrated Systems Analysts, Inc. Port Hueneme. CA. 7/87 -10/89

Senior Systems Analyst/ADP Manager

Logicon. Inc., Advanced Technology Division. Woodland Hills. CA 7/85 -10/86

Senior Computer Scientist

Norman Engineering Co., Los Angeles. CA. 4/80 -10/84

Manager, Computer Services

Autologic Inc., Newburv Park. CA. 11/77 - 4/80

Senior Systems Analyst/Acting Director Systems Engineering

Litton Industries, Mellonics Information Center. Canoga Park. CA. 10/74 - 4/77

Senior Data Systems Analyst

Research Systems, Inc.. Manhattan Beach. CA. 11/72 -10/74

Manager Systems Development

Security Pacific National Bank. Economic Research Department Los Angeles. CA . 6/67 - 6/72

Research Economist/Research Officer/Assistant Research Manager

U.S. DHEW Social Security Administration, Various Cities, 9/60 – 9/66

Claims Representative

MILITARY SERVICE DATES

U.S. Air Force 01/03/50 – 09/08/53

U.S. Army 08/02/55 – 08/22/57

EDUCATION ORGANIZATIONS

University of Minnesota, Minneapolis MN American Legion

BA European Area Studies (1959) Air Force Association

Berlin Veterans Association

St. Louis University, St. Louis, MO

Graduate Studies in Economics (1962-1967)

[1] See Page 21 for the analysis of this fallacious opinion. It is logically meaningless except as an attempt at inside humor. For two general conclusions he offers only a single vague premise best described as “a shot in the dark.”

[2] Petitioner cannot be sure where this logically incoherent, effectively undocumented, opinion originated. It may indeed have been that of the Magistrate Judge, or it may have arrived on his desk in the memorandum from the Pro se Clerk through the Staff Attorney’s Office as in Question 1. Clearly though, the opinion could not have arisen through a careful reading of Petitioner’s submissions.

[3] When the Magistrate Judge opened the door to the Constitutional merits of his claims, Petitioner’s silence on the issue or mere denial would be tantamount to agreement. Thus Petitioner feels there is justification, with apology to this Court, to hedge the normal caveat against attempting to mention the merits in this application to an extent at least sufficient to demonstrate the lower Courts error in allowing the AEDPA procedural bar to stand in this, Petitioner’s first habeas corpus appeal.

[4] Specifically FRCP Rule 8(f): “All pleadings shall be so constructed as to do substantial justice.”

[5] Court Reference Convention: In this document, “this court” shall always refer to The United States Supreme Court and “that court or these or those Courts” shall always refer to any other court(s) depending upon the context.

[6] Suspension Clause, U.S. Constitution, Article I § 9 Cl. 2

[7] United States Court of Appeals for the Eleventh Circuit

[10] United States District Court for Northern Georgia, Atlanta Division

[15] “All pleadings shall be so construed as to do substantial justice.”

[16] That Congress intended to exclude from consideration because of a filing time limitation those cases where the petitioner is truly innocent is beyond comprehension.

[17] See page 21 of the Petition for this gross distortion of Petitioner’s claims

[18] To gain a quick familiarity with the case, click on The Case In Pictures

[19] United States Court of Appeals for the Eleventh Circuit

[22] United States District Court for Northern Georgia, Atlanta Division

[25] From testimony of Captain (then Lieutenant) John Latty.

[26] Burnette’s Notes, Image 004, 4/17/93 at 00:17

[28] See links to related testimony and “View Next Image” exhibit for DA Danny Porter’s testimony to the Court.

[30] See GCPD Lieutenant Powell’s testimony on 8/31/95.

[31] After TV viewing of the first part of the concurrent proceedings of the O.J. Simpson trial, the jurors expected the crime scene photographs to be at least half the size of a house.

[32] See Motion for Appealability, 11^th Circuit-21 (In Picture Format). Petitioner counted the possibility of at least 37 counts of felony perjury, subornation of perjury and obstruction of justice from 25 lines, about 1 page of testimony on only two misrepresented photographs.

[33] The jurors then did become “potted plants”.

[35] Each item is followed by rebuttal information in bold face and italics that is now available to Petitioner.

[39] Carey v. Saffold--Time for FedHC.htm, Internet Reference, Marshall

[40] Detail On the Georgia State Habeas Corpus document and proceedings can be found in the Question 2 discussion

[41] Petitioner cannot be sure where this logically incoherent, effectively undocumented, opinion originated. It may indeed have been that of the Magistrate Judge, or it may have arrived on his desk in the memorandum from the Pro se Clerk through the Staff Attorney’s Office as in Question 1. Clearly though, the opinion could not have arisen through a careful reading of Petitioner’s submissions.

[42] When the Magistrate Judge opened the door to the Constitutional merits of his claims, Petitioner’s silence on the issue or mere denial would be tantamount to agreement. Thus Petitioner feels there is justification, with apology to this Court, to hedge the normal caveat against attempting to mention the merits in this application to an extent at least sufficient to demonstrate the lower Courts error in allowing the AEDPA procedural bar to stand in this, Petitioner’s first habeas corpus appeal.

[43] Specifically FRCP Rule 8(f): “All pleadings shall be so constructed as to do substantial justice.”

[44] Court Reference Convention: In this document, “this court” shall always refer to The United States Supreme Court and “that court or these or those Courts” shall always refer to any other court(s) depending upon the context.

[45] Adolph Hitler and his Nazi Party depended almost entirely upon such generalizations to support their racial and political theories and actions. To name just a few: “Aryan Superiority”, “Jewish Treachery”, “Lebensraum”, The Supremacy of the State,” even to the extent of the right to determine and eliminate undesirables: Criminals, Jews, Gypsies, the Retarded: The “Life Without Being There” Program, etc.

[46] Webster: “Interpolate”, “1. To alter (a text) by the insertion of new matter, esp. deceptively or without authorization. 2. to insert (new or spurious matter) in this manner. Other definitions in the same vein.

[47] Petitioner’s First Petition was submitted on prison supplied forms

[48] “All pleadings shall be so construed as to do substantial justice.”

[49] This litany grows almost daily. The numbers of documented instances are parenthesized. The counts from 2 or months ago were: 1) Alteration of crime scene photographic evidence to support prosecution’s theory of crime: (20+). 2) Suppression or destruction of potentially exonerating evidence: (6). 3) Manufacture of incriminating evidence: (5). 4) Ignoring potentially exonerating evidence: (4). 5) Influencing of pre-trial defense attorney Walt Britt: (2). 6) Pre-trial shaping of witness testimony: (4). 7) Collusion of trial defense attorneys Johnny Moore (Elizabeth Rogan): (5). 8) Trial judge exceeding his authority: (5). 9) Subornation of perjury by prosecution: (5). 10) Perjurious testimony of witnesses: (5). 11) Misrepresentation of evidence: (2). 12) Prosecutorial misconduct: (13). 13) Police misconduct: (6).

[50] Incorrect citation. There is no Appendix “J”.

[51] Ground Two: “Ineffective Assistance of Appellate Counsel”

[52] The habeas court subsequently rearranged these 16 into 13 grounds, for a reason deemed to be good.

[53] The State of Georgia’s “catch-22” game of assuming “waiver” and “redundancy” seems just another game to be played in the courts. The State habeas court barred as waived issues the petitioner was at the time ignorant and applied the redundancy rule to whole classes of claims even when several new issues were added, e.g., Prosecutorial Misconduct.

[54] One example is the misidentification of the passenger door of the victim’s automobile as the driver’s door in testimony by a CST. A juror caught this and almost ruined the prosecution’s entire case. The State habeas judge found no significant problem with the misidentification. In the federal habeas, Petitioner claimed the misidentification was because no blowback blood spatter could be seen on the driver’s door, but there were blood smudges on the passenger door the prosecution attempted to show as blood blowback. Now, further photo analysis of the driver’s door since that submission shows classic “high velocity” blood spatter all over the driver’s door, but the indicated trajectory did not fit the prosecution’s theory and the blood blowback seen in the adjusted photograph would have soaked Petitioner’s rain jacket that GBI analysis showing only 6 or 7 pinpoint sized bloodstains. To show continued due diligence, this last altered photograph of the driver’s door was discovered only after final denial at the appeals court stage and remains to be presented to a court.

[55] Especially the Gwinnett County District Attorney’s “single police vehicle” theory, so critical to the prosecution’s eyewitness scenario.

[57] “He shot an arrow into the air. Where it landed he did not care – till it landed in his hair.”

[58] The Gwinnett County District Attorney used this technique to support other parts of his case where his evidence was extremely weak, e.g., additional, non-existent witnesses to support the prosecution’s theory of what time Chapel left the Firehouse and at what time the shots in the driveway were fired.

[59] Suspension Clause, U.S. Constitution, Article I § 9 Cl. 2: The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

[61] As defined in: United States v. Montano, 381 F.3d 16265 11^th Cir. (2004); Bousley v. United States, 523 US. 614, 622 (1998)

[66] It is not sufficient for a petitioner to “instinctively ‘know’ and assert the factual predicate” of his claims and its date of discovery. He or she must be able to prove the contention with sufficient evidence to overcome a court’s natural bias because of the assumption: semper praesumitur pro negante. Thus “he who asserts must prove”, and that burden rests just as heavily upon the State.

[67] Sawyer v. Whitley, 505 U.S. 333 (1992).

[70]See p. 15 above: Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000) and Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999)

[71] Townsend v. Sain, 372 U.S. 293, 313 (1963)

[72] Carey v. Saffold--Time for FedHC.htm, Internet Reference, Marshall

[73] Suspension Clause, U.S. Constitution, Article I § 9 Cl. 2: The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

[74] 18 U.S.C. § 242, Deprivation of rights under color of law

[75] United States Court of Appeals for the Eleventh Circuit

[78] United States Court of Appeals for the Eleventh Circuit

[81] United States District Court for Northern Georgia, Atlanta Division

[82] Motion for New Trial, Volume II, October 9, 1997, “My investigators are endeavoring to reach him in Chattanooga. If necessary, the chief of police has – we have begun to put in motion the fact that we’ll fly him back here in the police helicopter …”, District Attorney Danny Porter, page 319.

[83] Self Recruitment of Outside Assistance by Prisoner-Pro Se Petitioners is not only sanctioned but encouraged: Drew v. Department of Corrections, No. 99-4176(2002), lexis 14494 (11^th Cir 18 Jul 2002).

[84] The effect of this exorbitantly expensive personal telephone system is to inevitably further impoverish state prisoners and their families and leads inevitably to further isolation of prisoners when they need their loved ones most. Petitioner’s family pays from $300.00 to $500.00 each month for a few minutes of telephone conversation with him each week. Other prisoners are not as fortunate, and the isolation from their loved ones inevitably turns them inward to a dependency on gangs, drugs and other mischief. With the technologies of today, surely something else can be substituted that will allow these prisoners continuous contact with their loved ones. Families are not inmates, and as such they entitled to all possible respect and considerations from the State, the Warden/Respondent and all prison staff..

[85] See the resume and other credential attachments of Petitioner’s assistant attached.

[86] www.projectinjustice.org/chapel. Petitioner’s assistant is managing to wrest some control over his system from the hackers who have plagued him since his letter to the Attorney General. He will be able to update the site in a few days with the latest available information, including an electronic copy of Petitioner’s Supplemental complete with electronic links to all the many attachments and legal cases cited.