IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

 

 

MICHAEL HAROLD CHAPEL, GDC 845840  )

                                                                                       )

               Petitioner                                                        )      PRISONER HABEAS CORPUS

                                                                                 )      28 U.S.C.  § 2254

v.                                                                        ) 

)            

HUGH SMITH, Warden                                             )      CIVIL ACTION NO.

Georgia State Prison                                                    )      1:03-CV-2655-CAP

                                                                                       )

               Respondent                                                    )

 

 

COMMENTS ON WARDEN RESPONSE TO MOTION FOR EQUITY

 

                                                                             

       Comes now Michael H. Chapel, Pro se and Petitioner in this case, and makes these comments to this Honorable Court regarding the Warden-Respondent response to his motion for equity. Petitioner first begs this Court’s indulgence in the timing of this document. In addition to all of the difficulties enumerated here and in his Motion for Equity, Petitioner’s research and clerical assistant has been bedeviled by a group of very professional computer hackers that have at times slowed progress in producing the necessary documents in this Petition to a virtual crawl.

 

1.

       Petitioner finds little to quarrel with in Respondent’s response since he merely restates Petitioner’s positions. In paragraph (1.) Respondent merely restates the Magistrate Judge’s report and recommendation to dismiss Petitioner’s Petition as untimely and urges the recommendation be implemented. See 3. below for Respondent’s apparent alternate position.

 

2.

       In paragraph (2.) Respondent merely restates the content of Petitioner’s motion for equity and his proposed remedies.

 

3.

       In paragraph (3.) Respondent objects to this Court meddling in Petitioner’s conditions of confinement that are in fact causal to the subject Petition. This comment by the Attorney General asserts that the State of Georgia has sovereign authority over the human and constitutional rights of those citizens that are physically confined within the walls of its prisons. This position by the Attorney General seems a thinly veiled assault upon the Fourteenth Amendment. This the Supreme Court of the United States has consistently and unwaveringly maintained to be intolerable.

       In paragraph 3, Respondent does make two observations of consequence; to wit: (a) “[the motion for equity is not relevant to any of the issues presented in the instant habeas corpus case,” and (b) “… the Petitioner has other forums in which to make these same requests”.

 

(a) Relevance to Issues

       Petitioner is astounded to find that Respondent now agrees with him that there are more issues than “Timely Filing”, “ involved in the instant habeas corpus case.” This is an alternative to his position described in paragraph 1. These are the self-same issues that Respondent dismissed with what apparently passes for legal argument in Georgia, i.e., a disturbing combination of heavy sarcasm, lots of quotation marks and a lot of implied “you knows” plus a few implied some nods and winks.

       Is Respondent now ready to litigate what he now describes as “issues presented in the instant habeas corpus Petition”? If so, that would mean Respondent now drops his opposition to an evidentiary hearing. Petitioner is sensitive that federal courts are loath to re-litigate issues that have already been developed and decided in state courts. However, stemming from the Fourteenth Amendment, a burden is placed upon the federal courts requiring an examination of those decisions handed down by state courts to assure those state decisions were not fraudulently or otherwise illegally obtained. Petitioner is also aware federal courts sometimes overlook behavior where fraudulent actions are inadvertent or minor in nature where other untainted evidence of guilt is overwhelming, and he does not disagree with this policy.

       However, where a state court decision is criminally obtained, federal courts no longer have the luxury of ignoring the evidence brought against a defendant in state courts, and it is entirely such criminally developed evidence that was brought against Petitioner-Defendant in his trial in order to secure a conviction.

       In the two and one-half years between his arrest and trial, Gwinnett County police and prosecutors criminally labored to manufacture the evidence that led to Petitioner’s illegal conviction. What is so hideous about those efforts was that all the while these criminals knew full well Petitioner’s innocence of those heinous crimes. They knew and ignored the impact that conviction would have not just on their community but, more seriously, the impact Petitioner’s conviction had upon the confidence of the nation in its community police officers – and they did not care.

       Petitioner has now lain before this Court a veritable cornucopia of criminal issues on the part of the Gwinnett County police and district attorney, as well as others, based wholly on the record., and more such activity comes to light on a daily basis.

       Petitioner does not request a re-litigation of the evidence; rather he demands and justice demands that the full extent of the manufactured and otherwise criminally prepared and presented false evidence used to obtain Petitioner’s conviction be examined against the backdrop of their own activities and sworn testimony as demonstrated in the certified trial transcript and other documents prepared under oath and otherwise.

       It is for these reasons and no others that Petitioner begs this Honorable Court to hold an evidentiary hearing where the extent of these criminal activities may be determined. In the absence of a procedural default on the basis of untimely filing, it now appears that Respondent is in substantial agreement with Petitioner.

 

(b)   Other Forums: Prison Grievance and Other Procedures

       As examples of  “other forums”, Petitioner attaches just one response of the Warden-Respondent’s responses (PG-Warden Response To Grievance) What the response fails to mention is that, in the form of confinement in which he is maintained, Petitioner is allowed only limited visits to the prison library and that access is regulated entirely by the whims of the prison staff. Petitioner’s responses to this decision appear on the reverse of the document and are too slight to be printed. Thus the response is typed for clarity (PG-Petitioner Comments On Warden Response).

       The final procedural example (PG-Response To Petitioner’s Request) is a request for a copy of any AEDPA memos that were circulated among the prisoner population or otherwise disseminated by the authorities to the entire prisoner population and especially to those prisoners whom the AEDPA law enacted in 1996 would affect particularly in term of new time limits and their affect upon current petitions and those being considered. Petitioner’s original request is not shown and was not returned.  Also on this return is the notation of three (3) Freedom of Information requests made but never filled or otherwise acknowledged and returned by prison authorities. The final item on this form is a request for a case record. The case request was dated and put into the system by Petitioner Nov. 15, 2003. It was stamped received as Dec. 8, 2002. The date the case was finally shipped was Dec. 11, 2003. There is no indication when Petitioner finally received the requested case file.

       These examples are only representative of Petitioner’s treatment by the prison and others to whom he has appealed for assistance in building his case for exoneration. They are not out of the ordinary. The custodians of these data routinely ignore freedoms of Information requests from state prisoners. Petitioner stands ready to place before the Court for its consideration an inches high stack of similarly treated petitions and requests.

 

4. Communication Difficulties

       His research and clerical assistant visited petitioner this past weekend who required advice and guidance on several extremely important issues. To give the Court a flavor of the complexity of these issues, they involved a newly realized cover-up of the probable murder weapon by replacing the report on that weapon with the report on another weapon by GBI Specialist Kelly Fite and Lead Investigator Jack Burnette. Two additional issues involved the mechanics used by the Gwinnett  County police to incriminate Petitioner in the murder of the Russian and in the armored car robbery in Chamblee Georgia.

       These conversations were conducted in the regular prison visitor facility in the midst of an ear deafening cacophony resulting from the often-joyous conversations and peals of real and forced laughter of the other prisoners and their visitors in that crowded room. To even approach parity with these conditions, Respondent and Attorney General staff representing him would have to conduct their interviews in the middle of a no-holds barred rock concert.

 

5. Economic Issues

       Undoubtedly the State of Georgia will plead a paucity of resources to explain the circumstances causing this monstrous disparity in resources available to the Pro se prisoner petitioner, and undoubted they would be right and would be well able to make their case. If only, they would say, the prisoner would find a pro bono attorney or the funds to hire an attorney much of these disparities could be relieved, and in this they would be absolutely right as well.

       Lets all face this. In the legal world money solves many problems, and a whole lot of money will solve a whole lot of problems, and unlimited financial resources will often cause legal miracles.

       The nation still reels from the murder trial where the accused admitted killing his victim, then slicing and dicing that poor soul and somehow misplacing the head. With unlimited funds, the confessed murderer was able to hire a legal conjurer who through extraordinary feats of ledger-de-main was able to cloud the minds of the jurors sufficiently to gain an acquittal for his now probably impoverished client. And, after all, the murderer did not eat his victim, although we cannot be entirely sure about the head.

       If somehow we all could be magically transported somewhat further back to a time where parity existed, both of these men would have been executed -- the murderer for his crime, and his attorney for witchcraft, but the innocent Pro se prisoner with relative parity and good evidence stood a better chance of prevailing.

       To put the State of Georgia’s economic concerns to rest, Petitioner stands ready pay for all costs involved in his proposed remedies, including the additional cost of the electricity necessary to operate the notebook computer and requisite software that will reside in his cell. If other costs are involved in records searching and copying, Petitioner will also either furnish trained staff to accomplish these tasks or will recompense the prison at a reasonable rate for these materials. Again, while the essential remedies are required to restore parity, the details of implementation are open to negotiation and arbitration by this Court.

 

CONCLUSION

       Petitioner feels the Warden- Respondent’s stand in opposition to this motion while an attempt to say nothing, speaks volumes in support of the instant motion as well as Petitioner’s entire habeas corpus case. When the legal system is ready to face the issues brought by Petitioner in his habeas corpus petition now before this court, he has every confidence the Gwinnett County and other criminals will be exposed, and he will be exonerated.

 

       It is now time for the State of Georgia to rise above bureaucratic nonsense and clearly state its position on the Pro se Prisoner-Petitioner. If this Court rules for the Petitioner and enforces the proposed remedies, legal parity for such petitioners will rise up from under its ashen state -- and at no cost to the State of Georgia or its institutions. No longer able to plead poverty, the state must now disclose the reasons it wishes to maintain the current crushingly unfair system now barring Petitioner in his quest for justice and freedom.

 

Respectfully submitted this 29th  day of January 2004,

 

 

Michael H. Chapel

845840, GSP HC01

100 Highway 147

Reidsville, Georgia 30499

 

PG-

WARDEN RESPONSE TO GRIEVANCE

 

 

 

PG-

PETITIONER COMMENTS ONWARDEN RESPONSE

 

 

 

 

PG-

RESPONSE TO PETITIONER REQUESTS