ATLANTA DIVISION
MICHAEL HAROLD CHAPEL )
GDC 845840 )
) PRISONER HABEAS CORPUS[1]
Petitioner ) 28 U.S.C. § 2254
)
v. )
)
HUGH SMITH, Warden ) CIVIL
ACTION NO.
) 1: 03-CV-2655-CAP
Georgia State Prison )
)
Respondent )
PETITIONER’S OBJECTION[2]
TO RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Comes now Michael H. Chapel, Petitioner, Pro se in the above styled action and files his opposition to subject Petitioner’s Objection Magistrate Service Of Report And Recommendation Of United States Magistrate Judge by stating and showing this honorable Court as follows:
PETITION DENIAL RECOMMENDATION
Petitioner continues to contend the factual predicates of his grounds were not apparent in the period following his trial and direct appeals. They were only discovered and developed because of Petitioner’s continued due diligence in researching the voluminous data accrued in his case continuously since he was abandoned by his attorney in January of 1999.
As another measure of his incompetence and ineffectiveness, Attorney Randy Mott made no effort to prepare Petitioner for any pro se requirements including those of the newly enacted AEDPA provisions before or at the time he resigned as the Petitioners attorney of record. Add to this the extraordinary amount of time it took for Petitioner to secure a trial transcript and the prison’s attempts to frustrate the preparation of these petitions, and the Court will see that due diligence is not a trivial matter for a prisoner in a state prison.
By way of reference to the statement above that what started as a trickle of information has now become a torrent, this document will be followed by a second supplemental petition that will contain addition discovered or realized instances of misconduct or other evidence to support his claims:
· To support the claim that petitioner’s trial and conviction was intended to relieve pressure on the corruption within the Gwinnett County Police Department and to support the conviction with unsupported and scurrilous charges that were also illegally used to obtain a conviction will be the “AJC – The Judas Goat[3]” document.
· To demonstrate the effect the AJC article on the community, a communication from Terrie Kautter[4], the wife of the eyewitness Karl Kautter, is also to be presented.
· More “Brady” evidence in the form of photographs that indicate Petitioner’s two left hand gloves were tested for blood and/or gunpowder and, because the testing was obvious, never returned to Petitioner. To cover this mischief, the two right hand gloves were arranged to appear a pair[5] and photographed. It appears the second right hand glove was turned inside out to make it left-hand appearing; however the inside seam is showing, the thumb of the glove is incomplete turned out, and the fingers, except for the forefinger, are either doubled under or not pulled through. A clever deceit, but the fact that both gloves were for the right hand can be determined. An exculpatory report was never given the Defense – more “Brady”.
· Additional evidence in a previously overlooked small detail[6] of another photo[7] of high velocity blood spatter and computerized alteration by changing the color from red to black of the spatter. This photograph supports the trajectory of projectile 1 as coming from behind and to the left of the victim. Ergo, the reason Petitioner’s left hand gloves were tested.
· A communication from Attorney Randy Mott[8] and containing his signature indicating that Petitioner was never furnished or allowed to examine or even know the contents of Mott’s motion for a new trial.
· A forgotten communication from a DNA expert (1)[9] secured by Petitioner’s research assistant indicating that the blood on the armrest of Petitioner’s police vehicle[10] was secured as a dried blood sample and re-hydrated before being planted.
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 a 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[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.
REHASHING THE EVIDENCE
In his recommendation, the Magistrate Judge described the factual predicates presented by Petitioner to be without merit -- a simple rehashing of evidence already considered by the state courts. The Magistrate Judge then references a single sentence in the supplemental petition and projects his interpretation onto the entire body of evidence brought by Petitioner. That sentence[12] contained an unfortunate choice of words that applied only to the Georgia Supreme Court’s narrow treatment of the post-trial discovery of the victim’s purse and a state’s expert opinion regarding Petitioner’s raincoat that a state expert, in this case a tool mark ballistics expert, examined only after testimony in the trial had begun. Petitioner begs the Court to excuse this lapse. The post-trial purse discovery and the Petitioner’s raincoat and its misrepresentation at trial are fully treated in the supplemental petition.
A demonstration of such information conflict would be the testimony of Sergeant Donald Stone, Petitioner’s supervisor. It was established that all three officers were at the Northside fire station at the time District Attorney Danny Porter claimed the murder of Mrs. Thompson occurred – 9:45 PM. At trial, Sergeant Stone testified Petitioner left the firehouse between 9:20 and 9:30. However just after the murder, Stone told Captain Davis Petitioner left the firehouse 20 minutes before he left, and telephone records established that Stone was still at the firehouse at 10:17 PM when he called his home from that location.
Another instance of information conflict for that timeframe was Porter’s contention that Petitioner was in the Gwinnco driveway waiting for Mrs. Thompson at 9:30 PM, but the testimony of Chief Investigator Jack Burnette at Petitioner’s preliminary hearing established that a driver-witness passed the driveway between 9:30 and 9:35, and he told Burnette that the driveway was empty. At what must have been about 9:40, another witness saw what must been the victim’s car being placed in the driveway because another driver-witnesses saw only the victim’s car in the driveway. This is documented in Ron Flashner entry in Chief Investigator Burnette’s notes, and witness statements at 9:45, 9:50 and 9:55.
Included in these conflicts of information instances were several discovered that involved the destruction of exculpatory information and/or “Brady” violations. The best-documented example with of these violations is the withholding and destruction[13], while in the custody of the district attorney, of original telephone records subpoenaed and received from Bell South[14] when they proved exculpatory to the Defendant. This information conflict is documented right in the trial transcript.
On this basis, Petitioner admits to “rehashing the data”, but it was certainly not as simple as the Magistrate Judge would have us believe. There are literally dozens of these information conflicts in the prosecution’s case that prove unethical and illegal activity on the part of the state, and they are all fully documented in detail in Petitioner’s state and federal habeas corpus petitions, i.e., the rehashed evidence.
[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 has
grievously wronged" in light of modern concepts of justice. Fay v. Noia, 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); 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.
Respectively submitted this 18th_ Day of December 2003,
Michael H. Chapel, Pro se
845840
GSP HC01
Highway 147
Reidsville, GA 30499