IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
ATLANTA, GEORGIA
MICHAEL
HAROLD CHAPEL )
GDC
845840 )
PRISONER HABEAS CORPUS
Petitioner ) 28
U.S.C. § 2254
)
v. )
)
HUGH
SMITH, Warden ) APPEAL NO. 04/11939/B
Georgia
State Prison )
Respondent )
APPLICATION
FOR CERTIFICATE OF APPEALABILITY [1]
Comes now
Michael Chapel, Petitioner, Pro se in the above styled action and files this
motion regarding the appealability of his Petition for Habeas Corpus by the
United States Eleventh Circuit Court by stating and showing the following:
The Prosecution’s Version of the Killing of Emogene
Thompson
|
[1] Shot 1-ME Diagram Wound (2) |
[2] ME Diagram Wounds (1) And (2) |
[3] Shot 2-ME Diagram Wound (1) |
NOTE ON DISPLAYED PHOTOGRAPHS To enlarge any photograph to examine the
detail, simply click on that photograph. If only the photograph is shown,
click on File/Print Preview and select the desired enlargement percentage –
from 100 to 500 percent. The 200 percent enlargement is sufficient, but in
some cases the 500 percent maximum enlargement may be desirable. In most
cases, the photographs were either not available or their importance not
realized when the original analyses were conducted in early 2003. If the photograph was used in another study,
the photograph will be shown with a caption, links to research comments and
to appropriate witness testimony from the certified trial transcript. If this
is the case, click again on the photograph shown and follow the instructions
in the above paragraph. |
The
prosecution case against Petitioner is as follows: on April 3, 1993 GCPD
Officer Michael Harold Chapel answered a burglary call at the home of the
victim, Emogene Thompson, where he learned half of $14,000 secreted in the home
was missing. Aware now of the $7,000 remaining, the accused manipulated the
victim culminating in hearsay alleged, scheduled meeting in the driveway of the
Gwinnco Muffler Shop on the night of April 15, 1993. He turned on his blue
lights, then off and dismounted his vehicle. He then walked directly to the
partially open driver’s window of the victim’s car and delivered [1] Shot 1, ME
Diagram wounds (2) after which he reached through the partially open driver’s
window and delivered [2] Shot 2, ME Diagram wounds (1). Following this, the
accused again reached through the window, retrieved the victim’s purse that by
prearrangement contained the $7,000, returned to his vehicle, threw the
victim’s purse into his own vehicle and fled the area.
The Eyewitness Passes The Driveway[2]
|
[4] Omodt And Kautter Pass The Driveway, note rain
clad officer |
[5] Police Car Catches Witness Car At Transition |
[6] Passing Maneuver Completed |
An
eyewitness car passed the driveway while Officer Chapel was either walking
toward or leaning to look into the victim’s vehicle with a flashlight in his
left hand [4]. A police car catches the
witness vehicle at the transition to four lanes [5], and when it was possible
the police car passes them on the right, completing the maneuver just before
the leaning pine tree at Roosevelt Circle [6]. The passenger said he saw a
profile of the officer when he passed, and later identified the
Petitioner-Defendant from a hurriedly constructed photo-lineup.
[7] Photo Lineup[3]
Petitioner’s
appeal for writ of habeas corpus to the Northern District Court of Georgia
was dismissed by the U.S. Magistrate Judge as a rehash of petitioner’s state
habeas corpus. Based upon the evidence submitted to the district court the
magistrate judge upheld the states court’s decision on sufficiency of the
evidence, even though the state court’s denial was based only on procedural
bars; the magistrate also denied Petitioner’s indirect claim in ground 1 of
actual innocence since “actual innocence” is a prerequisite for the Ground 1
claim of “A Miscarriage of Justice”, and any claim of “insufficient evidence”.
The Magistrate also denied that the provisions of § 2444 (d) (1) (D) apply giving as his reason the petitioner “simply rehashes the evidence”. Thus the petitioner
presents no new evidence to support his contentions.” The
Magistrate Judge did not define his concept of “new evidence,” nor did he allow
that time and research could change the perspective on the presented evidence.
Under what circumstances could such presented evidence be considered new?
Petitioner
takes the position all evidence must be considered “New” when Petitioner can
demonstrate misconduct while such evidence or records of such evidence or
testimony were or are still in their custody by the police and/or the
prosecution and/or any state or federal agency and/or others, in an official
capacity, in the treatment of potentially exonerative evidence previous to,
after and at the original trial. Such evidence includes:
a.
Evidence criminally misrepresented to the
jury by the prosecution.
b.
Evidence criminally presented to the jury
that was intentionally altered while in the custody of one or more of the agencies named in 3 above.
c.
Evidence was used at trial but not or not
adequately shown to the jury.
d.
Evidence
not used at trial that was altered while in the custody of one or more of
the agencies named in 3 above.
e.
Evidence
that disappeared or was shown to be destroyed while in the custody of one or
more of the agencies named in 3 above.
f. Perjured
testimony while under any kind of oath, at pre-trial, trial or post-trial
proceedings.
g.
Manufactured evidence or
testimony referred to by the prosecution or defense to prove critical points in
the prosecution’s case:
i.The Guthries, Bobby
and Sara, on three occasions, non-existent ear witnesses, needed when the
original ear witnesses proved either hard-of-hearing or could not differentiate
sounds.
ii.Firefighter Peters,
non-existent witness to a 9:30 departure from the firehouse by Chapel, needed
when firefighter testimony was rock-solid on a 10 PM departure or in one case
inconclusive on the time.
iii.Emogene Thompson’s
phantom “bloody purse” referred to by the prosecution throughout the trial and as
the only possible mechanism for the blood transfer from the victim’s car to
Chapel’s unit. When found after the trial,
exhaustive testing showed no evidence of blood on the purse or its contents.
iv.Chapel’s phantom
police unit inferred and referred to by District Attorney Porter in his closing
as one of the old style, boxy type police cars with large yellow stripes.
[8] Evidence Misrepresented To The Jury -- The Doors:
|
|
Except from Certified Trial
Transcript [Judy Graham, Trial, Page
3243, Line 22, by Prosecutor Smeal] Q. I'm handing you what's been
previously marked as State's
Exhibit 17. Can you identify that photograph, please? A. Yes, sir.
This is a photograph of the driver's side door from the inside -- the
inside of the driver's side door. The
door was open. Q. And what do those marks appear to be on that door? A. These appear to be blood spatter and maybe also some flesh up
here in the corner. Q. Does that fairly and accurately depict how that door appeared
to you that day? A. Yes. Q. I'm handing you what's been previously been marked as State's Exhibit 18. Can you identify that photograph, please? A. Yes.
This is another picture of the same door. Q. I'm sorry. Which door is that? A. This is the driver's side door. Q. Okay. And does that
fairly and accurately depict how the driver's side door appeared to you that
day? A. Yes. Prosecutor Smeal, Trial, Page 3248, Line
8]
MR. SMEAL: The next photograph is State's
Exhibit 17. [[Presenting to
the jury] JUROR: Passenger side door? MR. SMEAL: This was identified as the passenger side
door. THE COURT: You're just stating the Exhibit Number, Mr.
Smeal. MR. SMEAL: That was State's Exhibit 17. The next photograph is State's
Exhibit 18 Excerpt
from Trial Transcript Exhibit Index S-17 Photograph, Vehicle, Inside Driver's
Side Door 3247 S-18 Photograph, Vehicle, Driver's Side
Door 3247 |
The information above is contained in a Certified Trial Transcript. It is undeniable, and there is no way to “spin” it: “I didn’t say that” or “I don’t remember”, just will not work here. First there is the testimony under oath by a GCPD police official in response to questions from a prosecutor who is also an officer of the court. The descriptions of Exhibits 17 and 18 are also intentionally misrepresented in the Certified Trial Index. The content of the photograph exhibits are not only identifiable by their images; they are also labeled as to content, and the witness herself took the photographs. When presenting these postcard-sized photos to the jury, Prosecutor Smeal stood at least twelve (12) feet from the jury box. Even at that distance, a far-sighted juror who was able to make out the legend blurted out loudly: “Passenger Door”. Prosecutor Smeal then again lied to the jury when he instinctively replied: “This was identified as the passenger side door.” But the damage to the jury had been done. They had heard “driver’s door”.
A
reasonable count of the felony crimes committed upon the defendant in just this
one example would include: 2 counts of perjury by Witness Graham; 2 counts of
subornation of perjury by Prosecutor Smeal; 1 count of obstruction of justice
by Prosecutor Smeal when he lied to the jury about how the picture was
identified; 3 counts of obstruction of justice, one for each of the Prosecution
team, for mislabeling the photographs in the official index of exhibits in the
certified transcript; 5 counts of obstruction of justice for the three
prosecutors, the witness and Lead Defense Counsel Johnny Moore. Moore had the
opportunity to destroy the testimony and thus much of the prosecution’s case in
cross-examination – and did not; 20 counts of obstruction of justice for this
same group for bringing and condoning the 2 counts of perjury and the 2 counts
of subornation of perjury. Since this is a capital case as well, we could add
another 5 counts of attempted murder by illegal execution. This is a total of
37 felony counts, and there may be more, in just these few lines of testimony.
These five were not the only ones involved in this travesty.
Was this
simply arrogance on the part of the prosecution, or was it necessary to take
such a risk? District Attorney Danny Porter had counted on establishing a
foundation for the blood spatter testimony to be used by the next+1 witness.
Dr. Brian Frist, the Gwinnett County Medical Examiner. Indeed Porter had
announced with confidence at the beginning of this day Dr. Frist was to testify
as to blood spatter on this day. As a result of the exchange between Prosecutor
Smeal and the jury, Porter was now unsure how much the jury knew or guessed
about the exhibit photographs. Thus, in spite of his earlier promise, Porter
did not solicit any blood spatter testimony from Dr. Frist on this day.
Now if
District Attorney Porter had followed through and solicited blood spatter in
the victim’s car from Dr. Frist, and had he honestly shown the jury the blood
spatter evidence, this is what they would have shown the jury. To see the
actual blood spatter click here and to
see how he accounted for shot 2 click
here to how a normal hole in the upholstery to a bullet hole click here.
Blood Spatter From Shot 2 According To The Prosecution
|
[9] Shot 2, ME Diagram
Wound (1) – Entered neck 2” below left ear and shattering the glasses right
lens on exit. |
[10] Bullet
Hole in passenger seat from Shot 2 – Powder Burns but no blood
spatter anywhere around bullet hole. |
[11] Only Blood on seat
circled in white. No other Blood. |
The blood spatter
from shot 2 is easiest to explain because there was none. In Photograph [9] the
projectile entered the victim’s neck approximately 2” below her ear and exited
her right eye, shattering the right lens of her glasses, piercing the passenger
seat where indicated in [9] and [10] and lodging somewhere below the surface of
the passenger seat. Photographs [10] and [11] show clearly there is no blood
spatter on the passenger seat except for the two small drops nowhere near the
bullet hold in the seat. In Photograph [10] there is even yellow powder stains
and black burn marks along the edge of the hole indicating the projectile did
not pass through anything before entering the passenger seat.
Blood Spatter From Shot 1 According To The Prosecution
|
[12] Shot 1-ME Diagram Wound (2) |
[13] Blood Spots In passenger Door Well – Door Must
Be Open To Make This Possible |
[14] Blood Spots On Passenger Door Armrest |
|
|
[15] Blood Near Console
State’s Exhibit 18 |
[16] Blood Spot On Window
Look Carefully at Decal |
[17] Blood Spots On The Door
State’s Exhibit 17 |
|
|
[18] Only Blood on seat circled
in white. No other Blood. |
[19] Blood Spots On Middle
Counsel Note Cigarette Without Lipstick And Empty Right Frame of Glasses |
[20] Blood Spots On Steering Wheel |
|
None of
the blood spatter in the front seat of the victim’s automobile that according
to the prosecution must have resulted from Shot 1, with the exception described
below under Shot 3, can be described as “high velocity blood spatter [HVBS].
Other characteristics, location and size confirm this, e.g., blood spatter on
the steering wheel includes a smear. Thus these blood spots could not have
resulted from Shot 1.
Driver Area And Driver Door And Window And Back Seat
Areas
|
[21] Driver Area And Part Of Door – No Blood Spots |
[22]
Driver’s Door And Partially Open Window – Photographed Only Because Of Dirt
Spot On Console. No blood spots. |
[23] Back
seat of victim’s car – Note two small blood spots circled in blue. |
Further, had
either shot 1 or shot 2 been delivered through the partially open driver’s
window as alleged by the prosecution, there would have been backward HVBS in
the front seat driver’s area and on the driver’s door
and window, and there was no blood at all in thee
areas. An additional two (2) small blood spots in the back seat area do not
seem to belong there. This is also explained below under Shot 3, but first some
more evidence that was altered with the sole intention of getting a guilty
verdict in Chapel’s trial.
More Altered Evidence While in Police And/Or
Prosecution Custody
What The Jury Saw
|
[24] Photo of the rear of the victim’s automobile. Note
the erasure type mark on the trunk just above the license. Note also half of
the license plate is missing. Finally note the black interspersed with some
red bloodstains on the yellow police tape. |
|
[26] Photo of front seat from the
driver’s door after the victim was removed. Note the victim’s small purse
that contained her cigarettes and could have contained ID and other small
documents, currency and change. |
Now look carefully at the related photographs just below these to see what the jury could not see in the photograph or that was related to the photograph. In photo [24] the license plate is half missing, but in photo [27] the license plate is complete. There is blood spatter on the headlight in photo [28 that cannot be seen in photo [25] as well as blacked over blood marks on the yellow tape. Finally, blacked over high velocity blood spatter just above the purse in photo [29] cannot be seen in photo [26]. If you are viewing this material electronically, go to FILE/PRINT PREVIEW and view the materially first at 200% then at 500%.
What
The Jury Did Not See
|
[27] Copy of a Polaroid
photo, again of the rear of the victim’s automobile. In contrast to the above, altered
photograph, the license plate is complete and all characters “NAD917” can be
clearly distinguished. Lower right picture on enlargement. |
[28] Detail from the above
photo of the front of the victim’s vehicle shows the yellow tape again with
mostly black marks on it where the blood spots were marked out, but leaving
some red bloodstains on the tape, just in front of the tire. Note also a red bloodstain
was missed on the yellow plastic fixture at the lower left light fixture. |
[29] Detail from the
above photograph enlarged sufficiently to see where very small bloodstains [some][1]
were covered in black. Stains form high velocity blood spatter pattern
from a shooter sitting in the left back seat, the pistol in his left hand
reaching around the driver’s headrest to make contact with the victim’s left
neck where the shot entered. The shot exited the victim’s right eye. [3] Shot
2, [2] ME drawing (1). |
State’s Exhibit’s 12 and 13
State’s
Exhibit 12 along with State’s Exhibit 13 were kept hidden from the jury at trial
by clever courtroom tactics and at trial seen only by the prosecutor and
Officer Beyers, the first GHCP officer on the scene. State’s 12 is discussed
below in connection with Shot 3. Petitioner is just guessing as to which photo
State’s 13 is, A or B. Both show considerable alterations, A more so than B. A
began as a Polaroid that must have been too graphic. With no Polaroid recovery
possible, 35mm photo was taken of this possible 13 and another Polaroid taken
just prior to it, and the positive photo altered. Both photos were then
re-photographed onto 35mm film and both positives and new negatives stored in
the ME file who was claimed to be the photographer. The ME file is a subject
unto itself.
The Making Of Possible State’s Exhibit 13-A
|
|
[31] This photo is the
original found in the files. In addition to the red blood splotches on the
yellow tape and other exterior surfaces, there is a considerable amount of
blood on the upper part of the driver’s backrest and the interior fabric of
the back of the window. |
[32] This Photo is the
finished product with much of the blood on the exterior and some on the
yellow tape covered. The blood on the driver’s backrest and interior window
fabric was apparently removed by changing the contrast and color of the
altered photo. |
More Altered Evidence: The Making Of Possible State’s
Exhibit 13-B
|
[33] This is the positive photograph from that 35mm negative. It
shows blood on the yellow tape and attempts to mask blood on lower vehicle
exterior. |
|
[35] [Also top picture in 34] A reconstructed
scene had new yellow tape and a showroom shine on that part of the exterior
of the vehicle. |
If Not From Prosecution’s Shots 1 and 2, Where Did All
That Blood Come From?
So here we
all are. A crime scene with blood all over the place, but that none of which
can be explained by the prosecution’s theory of the murder. It is no wonder
that the crime scene was hardly if ever mentioned during the trial of Michael
Chapel. It is also no wonder that whenever the crime scene was mentioned it was
in the context of perjury or some other criminal act or, at best, in the
context of stupidity of those used as dupes by the prosecution.
On the
first night of the police investigation just after midnight (00:41), Chief
Investigator Jack Burnette received a telephone report from a Ronald (call me
“Ron”) Flashner 520 Gold Creek Trail in Buford (897-4523), who passed the
muffler shop driveway traveling south at what must have been about 9:40 PM.
Even though the rain was extremely heavy, Ron saw two civilian vehicles,
back-to-back in the driveway with three or four people around them. Ron’
description of the first car in the driveway, pointed in, closely resembled the
victim’s vehicle, and his description of the second car, pointed out, resembled
the vehicle owned by the victim’s son, complete to the black exhaust that
completely obscured PIB in front of the muffler shop.
Jack
Burnette had just returned to his office from a meeting in a darkened police
car in the parking lot where the four of them had decided that Mike Chapel was
the murderer of Emogene Thompson. Burnette entered the information from Ron
Flashner into his log, and it was never used or even heard of again in
connection with the murder investigation.
There were
not two shots as the prosecution alleged; there in fact were three. The first
shot into Mrs. Thompson’s head (Shot 1), was fired at an unknown location. The
trajectory through the brain of that bullet was not necessarily lethal unless
it pierced a large blood vessel of which there are only a few in that area of
the brain, but it certainly would have rendered her unconscious or at least
unable to see speak or hear. Her body was at some point placed in the trunk of
what was most likely her son’s car, and then about 9:40 PM taken to the muffler
shop driveway. Mrs. Thompson’s car was first placed in the driveway, and after
that the son’s car was backed in, her body was transferred to the trunk of the
victim’s car.
This scene
is what Ron Flashner observed as he passed the muffler shop. The killer’s
intention was to return in the early morning hours and to set the scene for
what the police found the next morning. When they returned, they removed Mrs.
Thompson’s body from the trunk, dragged it first to the driver’s door where
they discovered there was too much exposure to oncoming traffic from the south.
Then they continued dragging the body around the front of her car to the
passenger door. All the while they were doing this, they were leaving a heavy
trail of blood in their wake. They opened the passenger door and lifted Mrs.
Thompson’s body across the front seat area and into the driver’s seat, all the
while the body dripped blood onto those interior locations shown in the above
photographs.
To
complete the scene, along with a few smaller things, the killers then moved to
the left rear passenger seat where one of them, probably left-handed, because
he had a choice, reached around the driver headrest with a pistol and fired the
second shot (Shot 2) into the victim’s neck, exiting through her right eye,
shattering the right lens of her glasses, hitting without breaking the
passenger side windshield but leaving a small nick and coming to rest on the
passenger floorboard very near, or just under the seat. The driveway was on a
sharp incline. On withdrawing his hand and weapon, the shooter dripped two
blood spots in the back seat area – see
Photograph [23] above.
There is
high-velocity blood spatter in the victim’s car. It is on the inside passenger
front windshield and on the upper part of the driver’s backrest just where it
would be expected from such a shot as Shot 3.
Shot 3 -- High Velocity Blood Spatter in The Victim’s
Vehicle
|
[36] Detail from
Photograph [30] above. Backward Blood Spatter on the upper part of driver’s
backrest and window’s interior fabric. |
[37] Detail from
Photograph [29] above. Observable here is small high velocity blood spatter |
[38] State’s Exhibit
12, Photograph [20] above. Taken from outside the vehicle, the high velocity
blood spatter is much more visible with enlargement. |
After
arrival on the scene, Officer Beyers surrounded the vehicle with yellow tape
secured to borrowed lightweight pylons. The high post-storm winds that morning
promptly blew over the pylons allowing the blood in the trail from the trunk to
the passenger door to be picked up and deposited on the exterior of the vehicle
when the tape came in contact. Finally, the killers must have returned after 2
AM on the 17th to do these things because according to the weather
station in nearby Chamblee, the last very heavy rain of the previous nights
storm occurred at that time, and this heavy rain would have washed away the
blood trial. A witness lead sheet indicates a couple passing the driveway about
4 AM reported seeing two white males running on PIB from the muffler shop.
Enough Already about blood. How About The Eyewitness
That Wasn’t?
There is
one final example of new evidence that is not only important because it proves
that the eyewitness never did identify the Petitioner/Defendant from photos in
the court, but this was realized only after the denial of the District Court. A
motion had been prepared but because of the denial could not be filed. It thus
gives added support to Petitioner’s claim under § 2444 (d) (1) (D). The motion is
attached.
How Much More “New
Evidence” Can Petitioner Produce?
Petitioner
has made a good faith effort to keep this motion to no more than 10 pages, but
there are literally dozens and dozens, perhaps even one hundred or more, proven
examples of fraud and misconduct involved in this case that have now been
documented, almost ad nauseous, in previous submissions to the various
habeas courts over the last four years. Even if only those incidents of fraud
and misconduct that rose to the level of a felony were chosen for inclusion,
its size would guarantee that this document would not be seriously read, and
because everyone so far has relied upon handy-dandy procedural bars to dispose
of my petitions thus far, this document is already in mortal danger. None of
the evidence put forward by Petitioner thus far has been seriously considered.
Responses thus far have been in the form of quips, sarcasm and generalizations
like “It’s just a rehash.” Unbelievable prosecution conduct like the alteration
and destruction of exonerating evidence just do not seem to matter.
The Law
First and
most important, Petition appears before to this Honorable Court with “clean
hands”. The same cannot be said for those who for their own reasons seek to
keep Petitioner buried in prison where they believe he cannot damage them.
Second, Petitioner contends that the overwhelming sense of the case law
considered is that before a procedural default is considered, justice requires
judges, in order to avoid a miscarriage of justice, to seriously consider the
evidence brought to that court by the petitioner. Third, Petitioner has brought
a mountain of exculpatory evidence before these habeas courts and so far only
one ground, the ineffective assistance of the appellate counsel, has been
litigated. The remainder of this evidence has been dealt with by quips, sarcasm
or generalities like “just a rehash” which mean nothing. Not a single point
brought by Petitioner to these courts has been seriously challenged. Do the
courts not realize that their headlong dash to embrace the concept of
“procedural default” can result in their jobs being outsourced to India, or
somewhere else even more obscure, because the great skills and experience they
bring to judicial responsibility are not needed? Finally, Petitioner realizes
that his case is an anomaly and poses the question: “Can a conviction that is
now proved to have been obtained using criminal means, and only criminal means,
remain valid?”
Petitioner
can see no better way to support his cause then to repeat some of the legal
argument previously placed before the habeas courts for consideration.
Procedural
Default
In his Georgia state habeas corpus petition, Petitioner
submitted sixteen grounds and all save one, “Ineffective Assistance of
Appellate Counsel”, were procedurally denied because of relitigation
and failure
to raise bars. Now again, Petitioner’s federal habeas corpus
petition is in danger of denial because of the AEDPA procedural default. Such a
denial will render impotent the massive body of evidence, showing State and
other misconduct and other grounds, accumulated by Petitioner since the early
months of the year 2000 and is still under construction. Procedural denial then
seems to take precedent over the factual predicates of grounds of which
Petitioner was not aware until years had elapsed since his trial.
Writing in Massaro
v. United States[2][11], Justice Kennedy describes the
“procedural default” rule as an almost administrative function that could be
carried out by clerks if blindly followed. Although speaking of a claim of ineffective
assistance of counsel, his remarks doubtless can be extended to all type of
grounds:
The background for our discussion is the
general rule that claims not raised on direct appeal may not be raised on
collateral review unless the petitioner shows cause and prejudice. See 
United States v. Frady, 456
U.S. 152, 167-168 (1982); Bousley v. United States,
523 U.S. 614, 621-622 (1998). The procedural
default rule is neither a statutory nor a constitutional requirement, but it is
a doctrine adhered to by the courts to conserve judicial resources and to
respect the law's important interest in the finality of judgments. We conclude
that requiring a criminal defendant to bring ineffective assistance of counsel
claims on direct appeal does not promote these objectives.
Justice
Kennedy then Quotes Judge Easterbrook from Guinan:
As Judge Easterbrook has noted,
"[r]ules of procedure should be designed to induce litigants to present
their contentions to the right tribunal at the right time." Guinan,
supra, at 474 (concurring opinion). Applying the usual procedural
default rule to ineffective assistance claims would have the opposite effect,
creating the risk that defendants would feel compelled to raise the issue
before there has been an opportunity fully to develop the factual predicate for
the claim. Furthermore, the issue would be raised for the first time in a forum
not best suited to assess those facts. This is so even if the record contains
some indication of deficiencies in counsel's performance. The better reasoned
approach is to permit ineffective assistance claims to be brought in the first
instance in a timely motion in the district court under § 2255. We hold that an
ineffective assistance of counsel claim may be brought in a collateral
proceeding under § 2255 whether or not the petitioner could have raised the
claim on direct appeal.
Justice
Kennedy again goes on:
Even meritorious claims would
fail when brought on direct appeal if the trial record were inadequate to
support them. Appellate courts would waste time and resources attempting to
address some claims that were meritless and other claims that, though
colorable, would be handled more efficiently if addressed in the first instance
by the district court on collateral review. See, e.g., United States
v. Galloway, 56 F.3d at 1241 ("threat of . . . procedural bar has
doubtless resulted in many claims being asserted on direct appeal only to
protect the record . . . unnecessarily burden[ing] both the parties and the
court . . . "). This concern is far from speculative. The Court of Appeals
for the Second Circuit, in light of its rule applying procedural default to
ineffective assistance claims, has urged counsel to "err on the side of
inclusion on direct appeal," Billy-Eko, supra, at 116.
The Ends Of Justice
[3](b) Unless it acts to
avoid a miscarriage of justice as defined by this Court's habeas
jurisprudence, a federal court of appeals abuses its discretion when it sua sponte recalls its mandate to revisit the merits
of an earlier decision denying habeas relief to a state prisoner. This [523 U.S. 540]
standard is altogether consistent with AEDPA's central concern that the merits
of concluded criminal proceedings not be revisited in the absence of a strong
actual innocence showing. The rules applicable in all cases where the court
recalls its mandate further ensure the practice is limited to the most rare and extraordinary
case. Moreover, like other applicable habeas standards, this rule
is objective in content, well defined in the case law, and familiar to federal
courts. McCleskey,
499 U.S. at 496. Pp. 558-559.References\mckleskey v zant
hearing.htm
JUSTICE POWELL, joined by
THE CHIEF JUSTICE, JUSTICE REHNQUIST, and JUSTICE O'CONNOR, delivered an
opinion with respect to Parts II and III, concluding that the Court of Appeals
erred in holding that the "ends of
justice" would be served by entertaining respondent's present
"successive" petition for habeas corpus, and that the District Court and the Court of Appeals
should have dismissed this successive petition under 28 U.S.C. § 2244(b) on the
ground that the prior judgment denying relief on respondent's identical Sixth
Amendment claim was final. Sanders v. United States
derived its "ends of justice" test directly from language of the
then-applicable statute, and left for another day the task of defining the
considerations that properly support a decision to entertain a successive
petition. Although § 2244(b) makes no reference to the "ends of
justice," that phrase still may be used generally to describe the standard
for identifying those cases where successive review may be appropriate. However, specific guidance should be given to the federal
courts as to the kind of proof that a state prisoner must offer to establish
that the "ends of justice" will be served by relitigation [477 U.S. 438] of claims
previously decided against him. Balancing the State's interests in finality of
convictions and the prisoner's interest in access to a forum compels the
conclusion that the "ends of justice" are served by successive review
only where the petitioner supplements his constitutional claim with a colorable
showing of factual innocence. The prisoner must make his evidentiary showing even though -- as
argued in this case -- the evidence of guilt may have been unlawfully admitted.
Here, the Court of Appeals conceded that the evidence of respondent's guilt
"was nearly overwhelming," and respondent's constitutional claim did not
itself raise any question as to his guilt or innocence. Pp. 444-455.
In decisions
of the past two or three decades construing the reach of the habeas
statutes, whether reading those statutes broadly or narrowly, the Court has
reaffirmed that "habeas corpus has traditionally been regarded as
governed by equitable principles." Fay v. Noia,
372 U.S. 391, 438 (1963), citing United States ex rel.
Smith v. Baldi, 344 U.S. 561, 573 (1953) (dissenting opinion). See Stone
v. Powell, supra, at 478, n. 11. The Court uniformly
has been guided by the proposition that the writ should be available to afford
relief to those "persons whom society Fay v. Noia
has grievously wronged" in light of modern concepts of justice., supra, at 440-441. See Stone v. Powell, supra, at 492, n. 31. Just as notions of
justice prevailing at the inception of habeas corpus were offended when
a conviction was issued by a court that lacked jurisdiction, so the modern
conscience found intolerable convictions obtained in violation of certain
constitutional commands. But the Court never has defined the scope of the writ simply by
reference to a perceived need to assure that an individual accused of crime is
afforded a trial free of constitutional error. Rather, the Court has performed
its [477
U.S. 448]
statutory task through a sensitive weighing of the interests implicated by
federal habeas corpus adjudication of constitutional claims determined
adversely to the prisoner by the state courts. E.g., Engle
v. Isaac, 456 U.S. 107, 126-129 (1982); See Stone v. Powell, supra, at 489-495; Fay v. Noia, supra, at 426-434.{8}
[3](b) Unless
it acts to avoid a miscarriage of justice as defined by this Court's habeas
jurisprudence, a federal court of appeals abuses its discretion when it sua sponte recalls its mandate to revisit the merits
of an earlier decision denying habeas relief to a state prisoner. This
[523 U.S. 540] standard is altogether consistent with AEDPA's central concern
that the merits of concluded criminal proceedings not be revisited in the
absence of a strong actual innocence showing. The rules applicable in all cases where the court
recalls its mandate further ensure the practice is limited to the most rare and
extraordinary case. Moreover, like other applicable habeas standards,
this rule is objective in content, well defined in the case law, and familiar
to federal courts.
McCleskey, 499 U.S. at 496. Pp. 558-559.
1. To show
"actual innocence" one must show by clear and convincing evidence
that, but for a constitutional error, no reasonable juror would have found the
petitioner eligible for the death penalty under the applicable state law. Pp. 338-347.
[1](a)
Generally, a habeas petitioner must show cause and prejudice before a
court will reach the merits of a successive, abusive, or defaulted claim. Even if he cannot meet
this standard, a court may hear the merits of such claims if failure to hear
them would result in a miscarriage of justice. See,
e.g., Kuhlmann
v. Wilson, 477 U.S. 436. The
miscarriage of justice exception applies where a petitioner is "actually
innocent" of the crime of which he was convicted or the penalty which was
imposed. While it is not easy to define what is meant by "actually
innocent" of the death penalty, the exception is very narrow, and must be
determined by relatively objective standards. Pp. 338-341.
Conclusion
Petitioner
contends that he has brought to this court sufficient well-documented evidence
for the “cause and prejudice” to this court to hear the merits of his claims and
to prove his “actual innocence” sufficiently that a “miscarriage of justice”
will occur if his claims are not seriously and thoroughly considered.
Petitioner further contends that it was several years before he managed to
secure serious research assistance and several more years to learn the extent
of the criminal misconduct on the part of the prosecution sufficient to file
for habeas corpus. Thus the exception provision of § 2444 (d) (1) (D) as well as the “actual innocence” exemptions
apply to the claims he has brought before this court.
Finally
Petitioner understands that there are unusual circumstances attached to his
claim and prays that this honorable court will not opt for the “AEDPA”
“procedural bar” presented as an easy way out but will in fact consider
Petitioner’s evidence and arguments.
If the court has any remaining doubts about
Petitioner’s “factual innocence”, he begs this court to re-read page 4 of this
petition and carefully considers the implications of that so well documented
exchange.
Respectively
submitted this __16th __ Day of May, 2004,
Michael
H. Chapel, Pro se
845840
Wayne
State Prison
P.O.
Box 219
Odum,
Georgia 31555