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 RECNSIDERATION
Comes now Michael Harold. Chapel, Petitioner, Pro se, in the above style action and moves this Honorable Court to accept this motion for reconsideration.
Michael H. Chapel, Pro se
845840
Wayne State Prison
P.O. Box 219
Odum, Georgia 31555
Respectively submitted this __22nd __ Day of March, 2004
Comes now Michael Harold Chapel, Petitioner, Pro se in the above style action and moves this court for reconsideration of its order of 16 March 2004 by stating and showing the court as follows;
(1)
Petitioner has raised within his petition a claim of actual innocence that he contends should toll the one-year limitation period for all prisoners seeking to challenge, via 28 U.S.C. 2254, the validity of a state court conviction. Petitioner contends that his actual innocence tolls Section 2244(d)(1) of Title 28, amended by the Antiterrorism and Effective Death Penalty Act.
(2)
Petitioner contends that a “manifest” injustice will occur if this court does not reconsider its order of 16 March 2004 because the Magistrate in his recommendation has either ignored or overlooked and erroneously failed to rule upon the Petitioner’s claim of actual innocence.
(3)
Actual
Innocence
The 11th Circuit “has yet to decide whether there is an ‘actual innocence’ exception to AEDPA’s one year statute of limitations: Helton v. Secretary, Dept. of Corr., 259 F.3d 1310, 1315 N.2 (11th Cir. 2001) citing Wyzykowski v. Dept. of Corrections, 226 F.3d 1213, 1219 911th Cir. 2000) cert. denied, ----- U.S. -----, 122 S. Ct. 1965 (2002).
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 2002) cert denied, ----- U.S. -----, 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.[1]”
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 whether the petitioner can make a showing of actual innocence, must be addressed (Wyzykowski, 226 F.3d at 1218). Thus only if the petitioner can make a showing of actual innocence does the court need to address this question of whether applying the statutory one-year 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 is as follows:
To be credible, such a claim [of factual innocence] requires
petitioner to support his allegations of constitutional error with new[2]
reliable evidence -- whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence -- that was not presented at
trial. (Schlup v. Delo, 513
U.S. 298, 324 (1995.) . . . If Actual innocence of the underlying crime, he
must show “it is more likely than not that no reasonable juror would have
convicted him in light of the new evidence presented in his habeas petition”,
Id at 327.
With respect to Michael H. Chapel’s actual innocence, “under the test set forth in [Jackson v. Virginia, 443 U.S. 307, 99 S. Ct 2781, 61 L.Ed2d 560 (1979], a rational trier of fact could not find evidence of every element of the crime of murder beyond a reasonable doubt. Presence at the scene of a crime is not sufficient to show that a defendant is a party to the crime under OCGA § 16-2-20 (Code Ann. § 26-801); O’Neal v. State, 239 GA 532, 238 S. Ed. 73 (1977); Parker v. State, 155 GA App. 617, 217 S.E.2d 871 (1980). Even approval of the act, not amounting to encouragement, will not suffice. Parker v. State, Supra. This is so because under O.C.G.A. § 24-4-6 (Code Ann. § 38-109) “too warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypotheses of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused”. Brown v State, 250 GA 862, 864(1), 302 S.E.2d 347 (1983).
However, aside from the circumstantial evidence used by the prosecution in this case, there was no motive, no presence nor flight and there is absolutely no evidence tending to identify the participant in the murder of the victim. The evidence therefore, as a matter of law, is insufficient to sustain Michael Chapel’s conviction for murder and robbery in this case. See Brown v. State, Supra, 250 GA 862, 302 S.E. 2d 347. Also see Moore v. State 340 S.Ed 888 (GA 1986); Schulp v. Delo, 513 U.S. 298, 324 (1995).
(4)
Petitioner further contends that a miscarriage of justice under Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct 2639, 2649-50 91 L. Ed 2d 397 (1986) will occur if the merits of this case where the constitutional violations have led to the conviction of the Petitioner, who is actually innocent. Moreover, the court has failed to do a “de novo” review of the Magistrate’s report and recommendations.
CONCLUSION
Wherefore, for all the above and foregoing reasons, the Petitioner respectfully prays this Honorable Court reconsider its order of 16 March 2004 and review the merits of the Petition, the Supplemental Petition and all other supporting documentation and if necessary hold an evidentiary hearing in the interest of justice.
I declare, under the penalty of perjury, that the foregoing is true and correct.
Respectively submitted this __22nd __ Day of March, 2004,
Michael H. Chapel, Pro se
845840
Wayne State Prison
P.O. Box 219
Odum, Georgia 31555