ATLANTA DIVISION
MICHAEL HAROLD CHAPEL )
GDC 845840 )
) PRISONER HABEAS CORPUS
Petitioner ) 28 U.S.C. § 2254
)
v. )
)
HUGH SMITH, Warden ) CIVIL
ACTION NO.
) 1: 03-CV-2655-CAP
Georgia State Prison )
)
Respondent )
PETITIONER’S FURTHER OPPOSITION TO MOTION
TO DISMISS PETITION AS UNTIMELY
Comes now Michael H. Chapel, Petitioner, Pro se in the above styled action and files his further opposition to the Respondents motion to dismiss petition as untimely by stating and showing this honorable Court as follows:
I STATEMENT OF FACTS
Petitioner is not an attorney nor is his research and clerical assistant and thus neither are not cognizant of the various stratagems, particularly the more subtle stratagems used by attorneys to gain their clients ends in court cases. Further study of Respondent’s Answer and Response to the instant petition however indicates Respondent is pursuing a laddered approach to his attacks on that petition. The first response was to move for dismissal on the basis of untimeliness, but Respondent also reserves the right to offer further arguments should that motion be denied (Answer and Response, 3). Respondent also refuses to waive exhaustion (Answer and Response, 3, 4, 9, 10, 14), even though Petitioner’s only avenue with the State would be a second state habeas corpus the grounds for which Respondent has already decided would denied as successive (Answer and Response, 5, et. al).
Petitioner has brought evidence the Gwinnett County district attorney, police and others stand guilty by their own words and deeds, but he now senses Respondent is staging his laddered attack on the instant Petition to gain time with the absurd hope the facts will change themselves. He now senses Respondent, if denied, will next stage a “due diligence” attack using the provisions of 2254 (e) and (f)[1], followed by a claim of non-exhaustion if that fails. Should that stratagem fail, Petitioner senses Respondent will finally come to grips with the grounds and issues of this Petition. To pre-empt Respondent’s laddered strategy, Petitioner begs this Honorable Court to consider all of these grounds and issues as presented in the instant Petition as supplemented without entertaining further procedural pleadings from Respondent. Respondent seems almost to present the appearance of associating himself with the Gwinnett County Criminal cover-up. That is certainly not true, and Petitioner invites Respondent to join him in an effort to ascertain the true facts underlying this case in an evidentiary hearing.
II DUE DILIGENCE
Petitioner avers he has shown consistent due diligence in his attempts to refute his conviction during the post-conviction period. Prior to this travesty, Petitioner had a rock-hard belief in authority, in the legal system of this nation and in those attorneys and judges charged with administering that system.
For whatever reasons, Petitioner has not been well served by attorney representation. Their services have been on a par with those of the world’s first attorney who gave such disastrous advice to his clients in their landlord-tenant dispute over grazing rights in the Garden of Eden.
Petitioner’s first attorney, Walt Britt, allowed the opportunity of the preliminary hearing to slip away without calling all of the available defense-alibi witnesses who were both available and then without time-eroded memories. In his defense, Britt called only Petitioner’s wife Eren, who was knowledgeable only in the area of the family’s finances. Britt then allowed Petitioner to sit in jail without fighting for a reasonable bond with reasonable conditions while he continued to accept the family’s money until that was exhausted. Petitioner has provided this Court with more than adequate evidence that his second attorney, Johnny Moore, colluded with the Prosecution to convict him. Petitioner’s post-conviction attorney, Randy Mott, ignored the cornucopia of misconduct evidence in the trial record in order to further his own agenda, not even allowing his client to see his “Motion for New Trial” before it was filed[2]. Randy Mott then abandoned Petitioner after the Georgia Supreme Court denied his appeal on the motion, and Mr. Mott simply disappeared from sight, remaining so to this day.
Petitioner was then alone in effective solitary confinement to ponder his innocence, his disgrace and his betrayal by the lies of his former comrades and the self-serving activities of his attorneys. Petitioner knew only he was innocent of the crimes for which he had been convicted. He was unaware of the criminal activities of those who had illegally convicted him. In this, Petitioner was not alone. The conspiracy to convict Petitioner was so effective, the jury, the press, including Court TV and all of their viewers, The National Broadcasting Corporation and the staff of Dateline and all their viewers and all of the reviewing attorneys, judges and their staffs were all misled by the machinations of the conspiracy.
During the entire period following the decision of the Georgia Supreme Court, Petitioner was casting about for answers that would allow him to effectively challenge his conviction. In January of 2000, Petitioner, as further evidence of his due diligence efforts was able to recruit the services of an alternate juror at his trial who was also a skilled analyst to assist him as a researcher and a clerical assistant. While during the trial this juror only sensed that Petitioner was innocent and could only base that on testimony that did not ring true, in some cases even mathematically, by the ineffectiveness of the defense attorneys culminating in Johnny Moore’s introduction of testimony prejudicial to the Defendant, and most of all on the vicious ad homonym attack of District Attorney Danny Porter upon the Defendant, his witnesses and his attorneys in his closing argument. Now, in retrospect, Porter’s closing argument would have made perfect sense and be absolutely true if he had only substituted Prosecution for Defense in his remarks. We are told that we actually visualize objects upside-down and our minds make the adjustment. Perhaps such a phenomenon also operated on the jury, press, public and the trial reviewing authorities.
Finding the truth was not an easy exercise. In addition to all else, the district attorney seasoned his case with much that can only be described as disinformation in his attempts to confuse the jury, the press and the public. Good examples of this are his descriptions of events in his opening argument. He confused the bullet entry and exit wounds to the head of the victim, inflated the amount of time eyewitness Karl Kautter had to view the police officer he identified as Petitioner more than 10-fold, from 4 to 45 seconds. He promised, but did not deliver a direct tie-in between the victim’s currency and the $100 bills found in Petitioner’s notebook. There are many, many more examples of this disinformation, the only purpose of which was to confuse the jury and others. Petitioner is still not satisfied that he knows the entire truth about what happened, but he granite-solid in his belief of the truth contained in the evidence submitted to this Court.
Petitioner invites Respondent and this Court to examine the evolution of the factual predicate of his grounds using the following time-dependent checkpoints: His Georgia state habeas petition on July 4th, 2000 consisted of little more than a rehash of the issues presented by Randy Moss in his motion for a new trial. By December of that year when he presented his supplemental state habeas, the grounds submitted were essentially those in the instant petition. The difference is the complete development of the issues. Essential to any analysis is a continuous probing of the issues and evidence. As facts are developed, the remainder of the evidence must be re-examined in the light of the new information developed, and in the voluminous records of this case this is severely time consuming.
Petitioner invites this Court to examine the factual predicate development of his grounds using the time-dependent breakpoints beginning with the first submission of the state habeas in July of 2000; the resubmission of the grounds in December of 2000; the information in Petitioner’s Internet website which has now not been updated for several months for reasons explained, the submission of Petitioner’s first federal petition and that in the supplemental petition only six or so weeks later.
Petitioner’s understanding of the factual predicate underlying his claims began as a trickle in January of 2000 and has now become a torrent. Respondent makes much of the eleven or so months delay before Petitioner filed his federal petition; however it was during this period that the analysis logjam began to break substantially with new discoveries coming faster and faster during that time period. Petitioner was loath to furnish this Court incomplete information. The delay that Respondent makes so much of was not caused by procrastination or malingering.
Petitioner stands ready to furnish this Court additional evidence of due diligence in the form of hundreds, perhaps thousands of pages of correspondence during this period that will amply demonstrate continued due diligence in the pursuit of his claims.
The volume of this correspondence was such that Respondent reacted to it with new rules and procedures for prisoner mail. Petitioner and his research and clerical assistant stand ready to furnish to this Court evidence of such continued obstruction by Respondent and others with the sole purpose of slowing and, if possible, completely stopping the development of these issues by Petitioner.
III NON-EXHAUSTION OF STATE REMEDIES
Respondent has demonstrated in his Response and Answer that the scales are still nailed to his eyes, and he leaves little doubt about the outcome of any legal challenge Petitioner would bring to the Georgia state legal system, i.e., any ground Petitioner might bring before state courts would be denied as successive. This Court has the power to remand, but Petitioner begs this Court to consider the likely consequences and maintain this petition in the federal system.
IV GROUNDS AND ISSUES
Petitioner expects Respondent’s final gambit will be to challenge the grounds and issues, and the proper forum for this would be an evidentiary hearing in this Court’s jurisdiction. If Respondent is as sure of his facts as his Answer and Response indicate, surely such a hearing would be trivial and would allow Respondent to brush-aside the grounds and issues brought by Petitioner in the instant petition.
V CONCLUSION
Respectively submitted this _____ Day of November 2003,
Michael H. Chapel, Pro se
845840
GSP HC01
Highway 147
Reidsville, GA 30499