IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
ATLANTA, GEORGIA
MICHAEL
HAROLD CHAPEL )
GDC
845840 )
Petitioner, Pro se )
Appeal No.
)
04-11939-B
v. )
)
HUGH
SMITH, Warden )
Georgia
State Prison )
Respondent )
MOTION
FOR LEAVE TO PROCEED IN FORMA PAUPERIS (PLEADING)
Comes now Michael H. Chapel, Appellant/Pro se pursuant to Fed. R. App. P. 24 (A) and moves this Honorable Court in good faith for leave to proceed on appeal in forma pauperis (IFP) by stating and showing the court as follows;
I
On 18 June 2004, the Atlanta District Court Denied Appellant leave to proceed on appeal in forma pauperis. [See attached court order of 18 June 2004.] Although the court found Appellant to be a pauper and would have been entitled to proceed IFP, it denied Appellant’s claims as frivolous under 28 U.S.C. § 1915 (2) (B) (i). The District Judge’s decision was based entirely on the Magistrate Judge’s “Final Report and Recommendation” (attached).
II
Appellant disputes the District Court’s assertion that his claims are frivolous under the meaning of 28 U.S.C. § 1915 (2) (B) (i) and now respectfully moves this Honorable Court to allow him leave to proceed on appeal in forma pauperis.
Appellant’s claims are not frivolous because the issues and questions raised involve substantive constitutional violations. Appellant was deprived of his right to defend himself in violation of the “excessive bail” clause of the Eighth Amendment[1]; and violations of the “speedy trial”, “witness confrontation” and “assistance of counsel” clauses of the Sixth Amendment led to his conviction in state court by unfair, indeed criminal means in violation of the “due process clauses” of the Fifth and Fourteenth Amendments to the Constitution of the United States.
Appellant is not demanding a second radio in his cell. The claims he brings to the federal courts are important and not trivial or frivolous. The District Court cites Ellis as an example of a non-frivolous issue, ruled on by both the Solicitor General and the Supreme Court, and “the issue Ellis presented – probable cause for arrest – is not one that ‘can necessarily be characterized as frivolous.’” [Ellis v. United States, 356 U.S. 375 (1958).]
Appellant’s was a capital trial, and his sentence was extremely severe[2]. Appellant was convicted only as a result of criminal acts by the police and prosecution, many of which rose to the level of felonies, and the state’s cover-up of this criminal activity was so complex it is still in the process of being untangled and understood (See the attached “Motion to Consider Proof of Police and Prosecution Misconduct”). All of Appellant’s claims are extremely well documented by the certified trial transcript and a host of other documents, and his claims should not subject to an abbreviated summary decision as frivolous such as that conducted by the district court Magistrate Judge and accepted without comment by the District Court.
III
In his report and recommendation dated December 2, 2003, the Magistrate Judge, in pertinent part, states:
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. 311]. In his petition, supplemental petition and response to the state’s motion to dismiss [i.e., every thing brought by Appellant], Petitioner simply rehashes the evidence already presented and argues why the state court’s rulings regarding the sufficiency of the evidence are erroneous. [p. 4]
The conclusions of the Magistrate Judge are simply wrong and misleading. When broken into the constituent parts, the Magistrate’s conclusions are easily shown as nonsense. First:
Petitioner’s contention is without merit. Petitioner does not proffer any evidence or facts not already considered by the state courts.
On its face this conclusion is simply
wrong. The State habeas corpus document consisted of 16 grounds, 200 plus lines[3]
[pages] of descriptive text plus 40 photographic and 20 other exhibits, and was
described by the State Habeas Judge as the largest and best-documented habeas
corpus petition he had ever seen. Unfortunately, only 1 of the grounds of that
petition was litigated. The only consideration given the remaining 15 grounds
was to procedurally bar them without consideration of their merit.
The next sentence was meant to support this first conclusion, but in reality had nothing to do with it or substantively anything else:
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. 311].
This sentence undoubtedly struck the fancy of the Magistrate Judge because of the incorrect usage of the word “interpolate”. Appellant, who is neither a lawyer nor an accomplished scholar and has limited editing support, of course meant to use the word “interpret[4]”. This one sentence, that by itself means nothing, is meant by the Magistrate Judge only to ridicule Appellant and to oppugn by association the entire body of evidence he brings before the federal courts. Indeed the Magistrate Judge’s very next words seem intended to transfer the implications of this small literary gaffe onto that body of evidence thereby raising the level of a “typo” to a condemnation of the entire petition as only pretentious, logically-incorrect nonsense, an ad homonym and certainly not objective description.
The last part:
In his petition, supplemental petition and response to the state’s motion to dismiss, Petitioner simply rehashes the evidence already presented [to the state] and argues why state court’s rulings regarding the sufficiency of evidence are erroneous. [p.4]
This is the Magistrate Judge’s second and only other conclusion. The first part of this conclusion is really a “rehash” of his first conclusion, changing only “evidence already considered” to “already presented”. The last part, “sufficiency of evidence” is not a claim and is not argued in Appellant’s federal habeas appeal.
Appellant’s federal habeas petition establishes that there was zero evidence of guilt presented at his trial other than that which was derived from perjury and the subornation thereof, from testimony that resulted from witness intimidation and manipulation and from altered, planted or otherwise manufactured physical evidence that could easily have been countered by the suppressed exculpatory evidence and a non-collusive defense. Just something more than a cursory glance at the documentation contained in the supplemental petition would have in fact established this for the Magistrate Judge.
Sufficiency of evidence is a claim in the Georgia state habeas. It was a holdover from Appellant’s direct appeal, and was included there because Appellant had not yet discovered sufficient of the factual predicate of his claims. Appellant knew he was innocent, but, like the rest of us, had no idea of how his conviction was accomplished in that fantastic trial.
In summary then, the Magistrate Judge presented only what amounted to a single conclusion that even the State of Georgia dared not make, and a comment about a fictional “sufficiency of evidence” argument, and he documented his conclusion with a single statement by Appellant, the function of which was intended only to discredit by implication Appellant and his entire body of evidence.
The lack of objectivity in his analysis renders the Magistrate Judge’s conclusions as only his opinion and thus entirely subjective. Coppedge explicitly rejects such a “subjective” standard of review:
What
meaning should be placed on the "good faith" of which the statute
speaks? In the context of a criminal
appeal, we do not believe it can be read to require a District Court to
determine whether the would-be appellant seeks further review of his case in
subjective good faith, i.e., good faith from his subjective point of
view.{GO>8} Such [369 U.S. 445] a
construction would deprive the legislation of sensible meaning, there probably
being no convicted defendant who would not sincerely wish a Court of Appeals to
review his conviction. Further, a
subjective standard might suggest that only persons who, in good conscience,
could insist on their innocence are to be entitled to a review of their
convictions without payment of costs.
We believe this interpretation of the statute is not required by reason,
nor is it consistent with the sound administration of criminal justice in the
federal courts. We hold, instead, that
"good faith" in this context must be judged by an objective standard. We consider a defendant's good faith in this
type of case demonstrated when he seeks appellate review of any issue not
frivolous. In so doing, we note that if
in forma pauperis litigation is attempted for reasons that may genuinely be
characterized as the litigant's "bad faith," express authority exists
in 28 U.S.C. § 1915(d) [1915 (a) (3)] for dismissal of the cause as
frivolous.{GO>9} Coppedge
v. United States, 369,444-45, (1962).
Finally, since Appellant is arguing “actual innocence” and not “sufficiency of evidence”, the “Carrier Standard” should guide any objective analysis, discussed below under Wyzykowski.
Coppedge establishes the burden to show that claims are baseless and without merit as that of the government:
It is not the burden of the petitioner to show that his appeal has merit, in the sense that he is bound, or even likely, to prevail ultimately. He is to be heard, as is any appellant in a criminal case, if he makes a rational argument on the law or facts. It is the burden of the Government, in opposing an attempted criminal appeal in forma pauperis, to show that the appeal is lacking in merit -- indeed, that it is so lacking in merit that the court would dismiss the case on motion of the Government, had the case been docketed and a record been filed by an appellant able to afford the expense of complying with those requirements. [Coppedge, 448].
However, to remove any doubts regarding the invalidity of the Magistrate Judge’s conclusion, Appellant points out much of the most important evidence had not yet been discovered at the time of the State habeas corpus proceedings. Many of the analyses of critical issues, e.g., the driver witness and crime scene analyses[5], had not yet been performed, and most of the worst acts of misconduct by the police and the prosecution (e.g., most of the crime scene photographic alterations, much of the perjurious and manipulated testimony and the lost and destroyed evidence among other issues) had not yet been discovered or completely understood. The most egregious act of misconduct, that of the police themselves firing of one of the shots attributed to Appellant into the victim’s passenger seat (Shot 2), was only discovered in the last few weeks (See the attached “Motion To Consider Proof Of Police And Prosecution Misconduct”).
To quickly gain a secure grasp on the prosecution’s case and the evidence presented at trial, and to understand how Appellant’s newly presented evidence proves these wrong. See the attached “Motion For Certificate Of Appealability (Picture Format)”, 17 pages, mostly pictures.
III
The District Court in its 18 June 2004 order further concludes that;
The court further concluded that equitable tolling did not apply, despite the Petitioner’s argument that evidence became available after his trial establishes his “actual innocence”. [p. Unnumbered]
This conclusion is invalid as well since there is no indication that it is based on anything more than the conclusion in the “Report and Recommendation of the Magistrate Judge” that was approved by the District Court without comment. Appellant has now demonstrated the conclusions in that report to be supported only by the opinion of the Magistrate Judge and thus subjective and not on any objective analysis of the claims brought before that court.
Appellant maintains his case should have been equitably tolled for two reasons. First because he is actually innocent and second because of the provisions of 28 U.S.C. § 2244 (d) (1) (D) because the factual predicate of the claims he presents were discovered, and that only partially, late in the year 2000, after he filed his skeleton state habeas in July and before his final submission on December 20th of that year. Successful development of this claim also implies actual innocence, and the development of these factual predicates continues to this day.
The conclusion by the District Court as to “actual innocence” is erroneous because of the standard set forth by this Honorable Court in Wyzykowski v. Department of Corrections, 226 f.3d 1213, 1219 (11th Cir 200) cert denied – US --, 122 W.Ct 1965 (2002). [Quoted from attachment to Appellant’s “Motion for Certificate of Appealability” to the District Court.]:
“Petitioner asserts the limitation period be tolled because he is actually innocent. (See Wyzykowski v. Department of Corrections, 226 F.3d 1213, 1219 (11th Cir 200) cert denied, --US--, 122 W. Ct 1965 (2002)).”
In Wyzykowski, the 11th Circuit considered the argument that “an actual innocence exception to the one year limitation, period must be read into the statute to avoid rendering the habeas remedy inadequate and ineffective and violating the suspension clause of the constitution.”
[t]he suspension clause provides 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. (United States Constitution Article 1I § 9 cl. 2.)
The court stated that before addressing the constitutional issue whether the suspension Clause requires an exception to section 2244(d)’s one-year statute of limitation of actual innocence, the factual question, when the petitioner can make a showing of actual innocence must be addressed (Wyzykowski at 1218). Thus only if the petitioner can make a showing of actual innocence does this court need to address this question of whether applying the one-year statute limitation period would violate the suspension clause. Id.
The Supreme Court explained the standard for determining whether a Habeas petitioner can make a showing of actual innocence in Schulp v. Delo, 513 U.S. 299, 324 (1995). as follows:
(d) 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.
GO>327-332.
Petitioner
maintains that evidence that was included at trial was misrepresented, e.g.,
the photos of bloodstains on the passenger door that were presented as being on
the driver’s door (43); or wrongly and criminally destroyed, e.g., the Bell
South telephone call records (38) fall under the “wrongly excluded” provision
of this rule. These, of course, are only a few examples.
Appellant is aware that his claims include charges of severe misconduct on the part of the police and prosecution that border on the “unbelievable”. In most if not all instances that misconduct can only be described as criminal. However these charges are all described and carefully documented by the trial transcript, related documents and physical evidence. In Denton v. Hernandez, the courts are cautioned not deny unusual claims that on their face may seem unbelievable:
As we stated in Neitzke, a court may dismiss a claim as factually frivolous only if the facts alleged are "clearly baseless," 490 U.S. at GO>327, a category encompassing allegations [504 U.S. 33] that are "fanciful," id. at GO>325, "fantastic," id. at GO>328, and "delusional," ibid. As those words suggest, a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them. An in forma pauperis complaint may not be dismissed, however, simply because the court finds the plaintiff's allegations unlikely. Some improbable allegations might properly be disposed of on summary judgment, but to dismiss them as frivolous without any factual development is to disregard the age-old insight that many allegations might be "strange, but true; for truth is always strange, Stranger than fiction." Lord Byron, Don Juan, canto XIV, stanza 101 (T. Steffan, E. Steffan & W. Pratt eds.1977). [Denton v. Hernandez, 504US 32-33 (1992)].
IV
The extremely effective cover-up by the police and prosecution of their misconduct in this case has made the task of discovering the factual predicate of the claims made by Appellant a difficult and continuing process, and it continues to this day. In every submission to the District Court there has been descriptions of newly realized, that is the equivalent of newly discovered, evidence that lends support to Appellant’s claims.
The Gwinnett County Prosecutor’s case has been shown to be a
house of cards that can be felled by even one new piece of information; whereas
Appellant’s claims are only made stronger by new information and evidence. This
is the hallmark of truth.
The hallmark of the district attorney’s case on the other hand was total confusion, and with this he was exquisitely successful. For example, to confuse the issue of the wounds in the victim’s head, he mismatched the numbers of the shots fired and the wounds inflicted, i.e., Shot number 1 was matched with wounds number 2 and Shot number 2 was matched with wounds number 1. This will be seen in the accompanying “Motion for Certificate of Appealability (Picture Format)”. Then for good measure, in his opening statement, the district attorney mismatched the entry and exit wounds to the victim, matching the entry wound caused by Shot 1 with the exit wound caused by Shot 2 and the entry wound caused by Shot 2 with the exit wound caused by Shot 1. The prosecution’s case was shot through with this kind of activity, and it was meant only to confuse the jury, the press and public and now the reviewing courts. Is it small wonder that the reviewing courts see Appellant’s case as the proverbial 600-pound gorilla to be avoided at all costs through the use of procedural bars?
This kind of confusion about the shots and wounds was necessary for the prosecution to disguise the fact that neither shot 1 nor shot 2 took place as described by the prosecution. In fact neither shot was fired into the victim from outside her automobile; however there was a third shot (Shot 3) that was fired from within Mrs. Thompson’s vehicle. Shot 1 was inflicted on the victim sometime earlier in that day or early evening somewhere outside of her automobile, and Shot 3 was fired from the left rear area of the victim’s car into the already dead or unconscious victim after 2 AM the following morning. This is explained in detail in the accompanying “Motion for Certificate of Appealability (Picture Format)”.
V
Appellant respectfully certifies because of the above and forgoing, that his appeal has arguable basis in law and fact and thus is not frivolous. Accordingly, Appellant’s appeal is meritorious, and his motion for leave to proceed In Forma Pauperis on appeal should be granted.
CONCLUSION
Wherefore, for all the above and foregoing reasons, Appellant/Petitioner respectfully prays that this Honorable Court consider and grant this: “Motion for Leave to Proceed In Forma Pauperis” and order that Appellant should be given necessary legal assistance and an evidentiary hearing held to validate his claims. In the interest of justice, it is so prayed.
I
declare, under penalty of perjury, that the foregoing is true and correct.
Executed
and respectfully submitted this 23rd day of July 2004.
Michael
Chapel, Pro se
GDC
845840
Wayne
State Prison
Box
219, Odum, GA 31555