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 OPPOSITION TO MOTION TO
DISMISS PETITION AS UNTIMELY
Comes now Michael H. Chapel, Petitioner, Pro se in the above styled action and files his opposition to the Respondents motion to dismiss petition as untimely by stating and showing this honorable Court as follows;
I STATEMENT OF
FACTS
Respondent seeks to have this court dismiss the instant petition as untimely because Petitioner did not pursue post-conviction appeals within the legally defined period after his direct appeal to the Supreme Court of Georgia was denied. The subject time period time period lapsed on February 13, 2000, and Petitioner did not pursue post-conviction activity until July 4, 2000, a period of 141 days or somewhat less than 5 months. As authority for such dismissal, Respondent cites 28 U.S.C. § 2244 (d) (1) without citing a sub-paragraph. From the context of the Respondent’s motion, he is pointing to sub-paragraph (A). The Respondent also states that he does not waive any additional defense on default if he feels that the Petitioner expanded his grounds in the instant petition beyond those submitted to the State Habeas Court nor does he waive exhaustion of State remedies. The Respondent claims this Court would “have to make new law” to accommodate Petitioner’s grounds. To avoid this, Respondent attempts to dictate to this Court what its finding should be in each instant ground.
II ARGUMENT AND CITATION OF AUTHORITY
Petitioner denies Respondent’s assertions as to the untimeliness of this petition or that any of his grounds go beyond those submitted to the State Habeas Court, e.g., that the ground of miscarriage of justice was not submitted to that court. It was Ground One. In fact, rather than expanding the grounds contained in Petitioners State petition, the 16 grounds included in that petition were reorganized and collapsed into 9 in the instant petition. Petitioner refers the Respondent to the State Petition document to examine the precise grounds raised therein. If the Respondent has lost or misplaced the State habeas petition, the entire document resides on the Internet web at http://www.projectinjustice.org/chapel, and the Respondent is invited to compare the issues and grounds and documentary evidence contained in the two documents. This exercise would also be useful to the Respondent in order to avoid putting forward further factual error to this Court. There are several of these contained in Respondent’s answer and response For example, none of the instances of juror misconduct cited by Petitioner involved a juror making prejudicial remarks about the Defendant*.
There has indeed been an expansion of the supporting evidence in Petitioner’s Federal appeal. This has resulted from the analyses of the available data at the time-points of the submission of the original State petition on July, 4th, 2000, the submission of the amended State petition on December 20th, 2000, the submission of the Federal petition on August 24th, 2003 and the submission of the supplemental Federal petition on September 9th, 2003. New detail about the illegal activities during the pre-trial, trial and post-trial by the Gwinnett, Georgia County police, district attorney and others were added as they were discovered. By constant case review, new documentary evidence about the conspiracy activities were discovered and developed during the time period after July 4th, 2000 up to the present.
These documents point up that the 1-year
time limit for a submission of a Federal petition in Petitioner’s case should
not be based on 2244 (d) (1) (A) as put forth by the Respondent but must be
based on some date later than that calculated from sub-paragraph (A). This new
limitation date must be based upon 2244 (d) (1) (D), at such time as Petitioner
discovered the factual predicate of the claims presented and demonstrate that
he was he was duly diligent in his search during this entire period, Lackawanna County District Attorney v.
Coss, 532 U.S. 394 (2001), here partially reproduced:
It is not always the
case, however, that a defendant can be faulted for failing to obtain timely
review of a constitutional claim. For example, a state court may, without
justification, refuse to rule on a constitutional claim that has been properly
presented to it. Cf. 28 U.S.C. § 2244(d)(1)(B)
(1994 ed., Supp. V) (tolling 1-year limitations period while petitioner is
prevented from filing application by an "impediment . . . created by State
action in violation of the Constitution or laws of the United States"). Alternatively, after the time for direct or collateral review
has expired, a defendant may obtain compelling evidence that he is actually
innocent of the crime for which he was convicted, and which he could not have
uncovered in a timely manner. Cf. 
Brady v. Maryland, 373 U.S. 83 (1963); 28 U.S.C. § 2244(b)(2)(B) (1994 ed.,
Supp. V)#
(allowing a second or successive habeas corpus application if "the factual
predicate for the claim could not have been discovered previously through the
exercise of due diligence; and . . . the facts underlying the claim, if proven
and viewed in light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that, but for constitutional error,
no reasonable factfinder would have found the applicant guilty of the
underlying offense"). [532
U.S. 406]
In the instant petition, Petitioner was still developing the factual predicate of his claims up to approximately two weeks prior to the submission of his supplemental Federal habeas petition. The evidence of this is contained in the evolving analyses of the subject data indicated in the various stages of petition analyses since the first on July 4th, 2000. Petitioner now refuses to say: “Now I know everything!” as he has done in the past. As each new surprise is absorbed, another shoe falls off this centipede.
The Gwinnett County district attorney appears to have been in charge of the coordination of the illegal activities surrounding Petitioner’s murder trial and apparently continued in that capacity to this day. Petitioner knew only that he was innocent, but could not at that time could produce documentary or other evidence to prove that condition because the district attorney and his minions hid their activities so well.
In the early months of 2000, Petitioner began a correspondence with an alternate juror at his trial. He had believed Petitioner to be innocent of the murder, and began the correspondence after a remark by the district attorney to the effect that “Chapel had been left by everyone swinging in the wind.” The Chapel conviction was and still is the brightest star in the District Attorney’s crown.
The former juror volunteered to help this Petitioner in the fight to prove innocence, and then he began to act as Petitioner’s research and clerical assistant, activities sanctioned by the 11th Circuit Court[1]. This juror is not an attorney, but is a highly trained and skilled analyst in a number for fields. He and the Petitioner have collaborated in dogged analysis of the data since then, uncovering and building upon each detail of the conspiracy to convict Petitioner as it became known to the investigators. This correspondence consists of several hundred letters and attachments and they prove the evolutionary and therefore time dependent nature of Petitioner’s grounds.
Petitioner also stands ready to prove, through testimony and logs kept, Respondent’s attempts to interfere with Petitioner’s legal challenges by showing the restrictions imposed on him by the Respondent in access to the mail, telephones and, most important, to the prison law library, and a log of registered and certified mail from and to him. Clearly these impediments were beyond Petitioner’s ken and control[2].
Additionally, Petitioner’s research and clerical assistant stands ready to prove, through testimony and documents, a highly sophisticated and probably very expensive hacker attack on his computer at some time after he wrote a letter to the Georgia Attorney General on April 27th, 2003 and included photographic evidence* that had been altered by computer software and a notification that an Internet web site would be soon available to view a great deal of the evidence involved in Petitioner’s murder case. The hacker attack continues to this day, and is reactively more powerful whenever an attempt is made to remove the hacker software resident on that computer. The attack has drastically reduced Petitioner’s assistant access to the Internet and off-line processes. The attack delayed the submission to this Court of the original and the supplement petition approximately one month or more. It has also adversely effected the application of Petitioner’s legal citations and caused available and supporting evidence in the areas of ineffective assistance of appellate council (in the form of a signed document by that counsel admitting that Petitioner never saw his motion for new trial until he first appeared in court for the hearing); DNA, (in the form of an overlooked expert opinion); high-velocity blood spatter within the victim’s vehicle, (in the form of overlooked, altered photographic evidence); additional exculpatory evidence suppression, (in the form of left hand gloves not returned to Petitioner) and other evidence omitted from the supplemental petition document because of time constraints caused by these hackers. Petitioner has no other option but to submit this evidence in another supplement to his petition.
III RESPONDENT’S COMMENTS ON PETITIONER’S GROUNDS
Just as the Georgia habeas court procedurally denied all but one of Petitioner’s grounds after attacking them without ruling, the Georgia Attorney General now assaults the Federal grounds with an attack best described as a myopic application of legalese heavily tinged with sarcasm replete with SIC’s, quotation marks and quotation marks within quotation marks but without arguments of substance. This blasé attitude of attorney general staff is a product of a comfort level encouraged by air conditioned offices and work tools that operate at the speed of light. Access to their law library and other facilities is unconditional. Compare these conditions with the heavily restricted and uncomfortable environment of a Pro se petitioner in a Georgia prison.
If in fact the Attorney General wishes to attack Petitioner’s grounds, he will soon find Petitioner’s Original and Supplemental Petitions electronically available on the Internet on the Petitioner’s web site HTTP://www.projectinjustice.org/chapel. The supplemental will be complete with electronic links to all attachments, entry points to trial testimony, cases cited, etc. This presupposes that the hacker software that controls the researcher’s computer can be defeated, as one of the restrictions placed upon the researcher is the update of the web site, although it may be viewed by anyone.
IV CONCLUSION
Wherefore, Petitioner prays this Court dismiss forthright the Respondent’s motion to deny the subject petition as untimely, but, failing this, that the Court hold an evidentiary hearing wherein Petitioner may testify, bring witnesses and provide documentary evidence to establish the date the 1-year limitation began as described in 28 U.S.C. § 2244 (d) (1) (D).
Furthermore, since the Respondent has already decided and made known in his decisions if brought before a Georgia State Court these grounds will be denied as successive, Petitioner prays this Court issue an order to the Respondent not bring any motion pleading non-exhaustion of State remedies before this Court.
Finally, since Respondent has signaled that he seeks only to procedurally default the Petition and will comment on but not attack the grounds with evidence or arguments of substance, Petitioner prays this Court order the Respondent not submit any further motions to procedurally default this petition and summarily issue Its Writ.
Respectively submitted this __5th___ Day of November 2003,
Michael H. Chapel, Pro se
845840
GSP HC01
Highway 147
Reidsville, GA 30499