IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
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 )
MOTION FOR CERTIFICATE OF APPEALABILITY
Comes now Michael Chapel, Petitioner, Pro se in the above style action, pursuant – Rule 22b FRAP, and moves this court to grant a Certificate of Appealability to appeal the denial of the petition of Writ of Habeas Corpus by stating and showing the court as follows:
(1)
Petitioner seeks to appeal this court’s denial of his petition of Writ of Habeas Corpus of 16 February 2004.
(2)
Petitioner cannot appeal his denial of
petition of writ of Habeas Corpus without a Appealability, see Rule 226 (b) of
the Federal Rules of Appellate Procedure and 28 U.S.C. § 2253.
(3)
Rule 226 (b) of the Federal Rules of Appellate Procedure and 28 U.S.C. § 2253 (c) provide that a prisoner cannot appeal the denial of a habeas corpus proceeding in which the detention complained of arises out of a process issued by a state court without first obtaining a Certificate of Appealability from a United States district judge, see 28 U.S.C. § 2253 (c) (2002); Hunter v. United States 101 F.3d 1565, 1578-83 (11th Cir 1996) (en banc) overruled in part on other grounds by Lincoln v. Murphy, 521 US 320 (1997) under § 2253 (c). A certificate of Appealability may issue only if the applicant has made substantial showing of a denial of constitutional right; 28 U.S.C. § 2253 (c) (2).
To obtain a Certificate of Appealability § 2253 (c), the petitioner must show that “[a] Reasonable jurist could debate to whether (or for that matter agree that) the petitioner should have been resolved in a different manner or that the issues presented were, “adequate to deserve encouragement to proceed further.” Stack v. Medwiel, 529 US 473, 484 (2000). This standard applies with equal force, “when a district court denies a habeas petition on procedural grounds without regarding the prisoners underlying constitutional claim” ID.
In such cases the court may provide a Certificate of Appealability only if the petitioner shows that:
1. “… jurists of reason would find it debatable whether the petitioner states a valid claim of the denial of constitutional right” and
2. … jurists of reason would find it debatable whether the district court was correct in its procedural ruling.”
3.
ISSUES
The issues that Petitioner wishes to raise on appeal, that he believes are meritorious are as follows:
1. Actual Innocence
a) The
District Court failed to conduct an evidentiary hearing.
b) The District Court erred and abused its discretion in failing to conduct an evidentiary hearing.
c) Petitioner
asserts that his entire habeas corpus petition is a claim and demonstration of
his actual innocence and felt that specifying “A Miscarriage of Justice” ground
would be sufficient to assert his actual innocence.
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.” Thus miscarriage of justice implies “actual innocence” which
is a prerequisite for the miscarriage exception. Ground I was not simply an
introduction to the remainder of the petition, but it was primarily an
assertion that Petitioner is actually innocent, and thus the one-year
limitation should have tolled.
d) 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. 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.327-*332.
Petitioner’s
claims go to the establishment factual innocence. The extent and effectiveness
of the conspiracy to convict Petitioner and the ability to cover-up their
crimes is a black tribute to then first term District Attorney Danny Porter,
now in his fourth term, and then Gwinnett County Police Department Lieutenant
John Latty, now Colonel John Latty (Ret.), and their success in holding
together the conspiracy speaks to the personal power of their authority in
Gwinnett County.
a) The
District Court Magistrate Judge writes in his recommendation that the
information put forward by Petitioner is a “simple rehash” of Petitioner’s
state habeas corpus claims which the “[Habeas and] Supreme Courts of Georgia
failed to correctly interpolate the importance of the new evidence.” The word
“interpolate” is admittedly a disastrous choice of words in that it’s meaning
is the complete opposite of the meaning Petitioner was struggling to convey. To
precisely convey his meaning, Petitioner should simply had said “the [Habeas]
and Supreme Courts of Georgia failed to correctly understand the importance of
the new evidence.
b) The
reason that these courts did not read, or at best paid scant attention to the content
of the state petition was that the state chose to procedurally bar all grounds
except for ground number two: “Ineffective Assistance of
Appellate Counsel, which ground was denied by the state habeas court since
the lead counsel, Randy Mott, could not be located and did not testify. Defense
Counsel Pickens of Atlanta did give testimony, but was only peripherally
involved, but even with this slight involvement Pickens held a very low opinion
of the skills of Randy Mott. With Mott absent, the habeas judge rated his
skills very high. Petitioner had no recourse to challenge the judge’s opinion
since he did not have an opportunity to face Mott who now was a witness for the
state. This was a clear violation of Petitioner’s constitutional rights under
the Sixth Amendment to the Constitution of the United States Barber v. Page, 390 U.S. 719
(1968), and the issues Petitioner brings to these habeas courts have yet to be
litigated.
c) The
Attorney General of the State of Georgia, taking his hint from the successful
procedural bars employed by the state, adjudicated only the federal procedural
bar of untimely filing of Petitioner’s federal petition documents, and simply
denying all of the other grounds submitted, and the Magistrate Judge seemed to
agree with him by again ignoring or paying scant attention the remaining
grounds before forwarding the petition to this court. Thus Petitioner’s claims
have yet to be litigated.
3) Procedureal Bars and Defaults Defined
a) Procedural Default Rule Explained:
Writing in Massaro v. United States[1],
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.
b) The
Permissability of Their Use: Sawyer v. Whitley, 505 U.S. 333 (1992)
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[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.
2) Courts
thus have the obligation to determine first whether a miscarriage of justice is
possible if they do not first obtain the full
measure of the cause and prejudice of the evidence brought before them
by a petitioner. Only then may they determine if the petition meets the
requirements of a procedural bar[2].
3) Kuhlman
then establishes that to avoid the res judicata bar, evidence provided
by the Petitioner must be new. Petitioner contends the following points
regarding post conviction “new evidence” [newly discovered evidence] and take
the position such evidence may come in a variety of forms in post conviction
proceedings.[3] [Petitioner must take the position that critical evidence
shown to the jury that he demonstrates to have been misrepresented to convict
must be considered new evidence. Also critical evidence shown to a jury he
demonstrates was altered while in the custody of the prosecution or police that
he demonstrates to have been altered must be considered new evidence. Also
critical evidence that was altered while in the custody of the prosecution or
police but never presented to the jury because it would exonerate him must be
considered new evidence. Also critical evidence that disappeared or was
destroyed while in the custody of the prosecution or the police must be
considered new evidence. Also perjurious testimony under any kind of oath, at
trial or anywhere else must be considered new evidence.]
4) Forms of New Evidence are as follows:
a) The weather on the night of the storm. See Affidavit at page: ___2__.
b) Critical
evidence located after the trial, e.g., the Victim’s Phantom Purse. The Money[4].
See Affidavit at page: ___2__.
c) The Driver Witnesses. See Affidavit at page: ___2__.
d) The Hearsay Witnesses. See Affidavit at page: __4___.
e) The Phantom Witnesses. See Affidavit at page: ___6__.
f) Emogene Thompson’s Phantom “Bloody Purse”. See Affidavit at Page: ___6__.
g) The American Inn Gun. See Affidavit at page: __7___.
h) The Weldon Seay found spent .38 caliber shell casing. See Affidavit at page: ___8__.
i) The Crime Scene Photographs. See Affidavit at page: ___8__.
j) Critical evidence presented to the jury, but misrepresented, e.g., Blood spatter on passenger door represented as on the driver door; the deck of police photographs, etc. See Affidavit at page: ___8__.
k) The
hidden photographs (212 S-12, S-13. See Affidavit at page: ___8__.
l) Critical evidence not presented to the jury, but altered. E.g., crime scene photographs. See Affidavit at page: ___9__.
m) The Eyewitness. See Affidavit at page: ___12__.
n) Critical exonerating evidence in the custody of the district attorney or the police never presented to the jury because of their loss or destruction. See Affidavit at page: __12___.
o) Examples of collusion and misconduct between the district attorney and the lead defense counsel that have become apparent during the case research beginning in 2000 and lasting to date. See Affidavit at page: _12__.
p)
The
Bloodstain in shapel’s Unit[5].
See Affidavit at page: __12___.
3. 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 against 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 affiant’s likely credibility bear on the probable reliability of that evidence. Pp 327-332.
CONCLUSION
Wherefore for all the above and foregoing reasons, Petitioner respectfully prays that this honorable court grant this motion for Certificate of Appealability to appeal this court’s denial of his petition of Writ of Habeas Corpus to the proper court in the interests of justice.
I, Michael Harold Chapel, Petitioner do declare under penalty of perjury that the forgoing is true and correct.
Executed this 25th Day of April, 2004
Respectively submitted this __25th __ Day of March, 2004,
Michael H. Chapel, Pro se
845840
Wayne State Prison
P.O. Box 219
Odum, Georgia 31555
ATTACHMENT
“A”*
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
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 )
MOTION FOR LEAVE TO AMEND GROUND I OF
PETITION FOR WRIT OF HABEAS CORPUS
Comes now Michael Chapel, Petitioner, Pro se in the above entitled action and files this motion for leave to amend Ground I of his Petition for Habeas Corpus by stating and showing the following:
(1)
Petitioner asserts that his entire habeas corpus petition is a claim and demonstration of his actual innocence and felt that specifying “A Miscarriage of Justice” ground would be sufficient to assert his actual innocence. Petitioner asserts the original Ground I was not simply an introduction to the remainder of the petition, but it was primarily an assertion that he is actually innocent and thus the one-year limitation should have been tolled.
(2)
Ground I of Petitioner’s original and supplemental petitions: “A Miscarriage of Justice” was solely intended to convey a claim of “actual innocence”. It had no other purpose; however Petitioner’s lack of knowledge of legal protocols and customs led him to use this language in place of the more legally correct, formal and accepted “Actual Innocence” term in the title and text of this ground. Since Petitioner’s entire case is based upon the concept of actual innocence, he requests that the current Ground I of his petition be struck in its entirety, and the below title and text be substituted.
(3)
Petitioner contends the inclusion of the language contained in this amendment to Ground I is absolutely critical to his cause. At the time of submission of his petition, Petitioner was unaware of the precise difference at law between the two terms and under the impression that “miscarriage of justice” was equivalent to “actual innocence”, and the treatment of any subsequent petition to include this language could be problematic because of “gatekeeping” rules.
TITLE:
GROUND I – ACTUAL INNOCENCE
I
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 but 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., Bell South
incoming telephone call records (38), fall under the “wrongly excluded”
provision of this rule.
II
Petitioner contends constitutional violations as detailed in the remaining grounds of the submitted Supplemental Habeas Corpus Petition have led to the conviction of one who is actually innocent:
2. Ineffective Assistance
of Appellate Counsel, 26
3. Denial of a Speedy
Trial, 29
4. Excessive Bail Imposed,
31
5. Newly Discovered
Evidence, 31
6. Police Misconduct,
32
7. Prosecutorial
Misconduct, 38
8. Juror Misconduct,
62
9. Ineffective Assistance of Trial Counsel, 63
CONCLUSION
Wherefore for the above and foregoing request, Petitioner respectfully prays that this motion to amend his petition for Writ of Habeas Corpus be approved – see Felker v. Turpin 83 F3d 1303, 1306 (11th Cir 1996); (“emphasizing that amendments to habeas petitions are hereby permitted”, at 1300.)
Respectively submitted this __25th __ Day of March, 2004,
Michael H. Chapel, Pro se
845840
Wayne State Prison
P.O. Box 219
Odum, Georgia 31555