IN
THE UNITED STATES COURT OF APPEALS
FOR THE TENTH
CIRCUIT
Gilda Marie
Schoonover
]
Petitioner
]
]
FILED: JANUARY 2008
Vs
]
]
]
Case No. 07---5174
Millicent Newton
Embry
]
Warden, MBCC
]
The State of
Oklahoma
]
Drew Edmondson
]
Attorney General of
Oklahoma ]
Respondents
]
Comes now Gilda Marie
Schoonover, an inmate at the Mabel Basset Correctional Center, 29501 Kickapoo, McLoud Oklahoma
under the care and supervision of Millicent Newton Embry,
Warden and brings before this Honorable Court her Appeal of an
adverse decision of the Northern District Court of the State of
Oklahoma and prays such decision be
reversed for reason and authority herein.
OPENING
STATEMENT
The Order dismissing the
Petition for The Great Writ is based completely and solely on the
Petitioner’s timing.
The Honorable Judge Eagan of the Northern District Court for
the State of Oklahoma did not reach the merits
of the numerous Constitutional Errors and Issues the Petitioner
raised as reasons to Reverse her conviction, Judgment and
sentence.
In the instant Appeal from
Judge Eagan’s erroneous
dismissal, the Petitioner herein will show clearly that she was [1],
not late in her application to the Northern District of Oklahoma and
that [2], Even assuming, arguendo, she was late, she should have
been allowed to proceed as a Pro-se litigant who should have been
liberally construed, especially as to procedural default; and [3],
in any event, Mrs. Gilda Marie Schoonover has claimed and brought
forth evidence of her being Actually and Factually innocent, and as
such, considering all evidence, this claim should pierce all
procedural bars.
1
STATEMENT OF THE
CASE
The Petitioner was wrongly
arrested and convicted of murder in first degree [Mayes County
Oklahoma, Case # CF-99-271] as said conviction was reversed by the
Oklahoma Court of Criminal Appeals {hereafter
referred to by “OCCA”}. Upon retrial she was again
wrongfully convicted.
Following a second
conviction, the petitioner filed direct appeal to the Oklahoma Court
of Criminal Appeals.
The Judgment & Sentence was affirmed. The Petitioner was
represented by the Oklahoma Indigent Defense System, assigned
Catrina Conrad Ledgler, attorney [see
record]
Affirmation on direct
appeal was rendered on September 8, 2004.
The Petitioner filed for
Post Conviction Relief application pursuant to Oklahoma Statute
Title 22, secs. 1080 et. Seq on September 30, 1005. She had not elected to seek
certiorari review from the U. S. Supreme
Court.
The application for Post
Conviction Relief was filed in the Mayes County District Court, the
Honorable Judge Dynda Post presiding, and the petition was signed
pursuant to Oklahoma Statute Tit.58, Chapter 17! At sections 1072.1
and 1072.2, that Statute made clear in In re matter of Rolater’s
Estate, 542 P2d 219 in which the Oklahoma Court of Appeals and
the Oklahoma Supreme Court defined “Power of Attorney” by Mr. John
E. Schoonover, the Petitioner’s husband and duly designated general
Power of Attorney. The
Petition and signature was accepted by the District
Court of Mayes County. The District Court denied
the Petition and its supplement on December 2,
2005.
From the decision of Judge
Post, the Petitioner timely filed her Notice of Intent to Appeal and
Designation of Record to the District Court, and, within the 30 days
allowed by the rules of the Oklahoma Court of Criminal Appeals she
filed her Appeal to the Oklahoma Court of Criminal Appeals of the
District Court’s denial.
The OCCA, ignoring two
facts, the first being that Mrs. Schoonover was appearing Pro-se
claiming protections under Haynes v. Kerner, 404 U.S. 519
[1972] and Hall v. Bellman, 935 F.2d 1106 10 Cir. [1991], and
therefore the court should grant broad latitude prior to dismissing
or rendering a negative decision, and second, and of utmost legal
standing, the fact that the Court ignored Oklahoma Statute Tit. 58
Chapter 17A outlining the law and authority of the law of Power Of
Attorney April 10 2006, in Post Conviction 2006-5 dismissed the
appeal for procedural default.
This dismissal was brought
to the Oklahoma Supreme Court, which by the Constitution of Oklahoma
is designated as Oklahoma’s highest Court, especially as to contract
law which a Power Of Attorney is undoubtedly is, beyond question, a
legal contract and any offering is a form of contract for the
Supreme Court’s writ of mandamus ordering the OCCA to accept the
signature of Mr. Schoonover’s Power Of Attorney. The Supreme Court of
Oklahoma abused its discretion by choosing not to accept the
Petitioner’s Application for Mandamus and later Motion to Reconsider
on June 29, 2006.
Four days later, with 64
days remaining to apply for Habeas relief as a matter of law the
Petitioner filed a verified Motion to Exhume the Truth as a genuine
bona fide effort to seek truth and Justice for newly discovered
evidence. To date this
Motion has not been answered by the District Court except by court
minute which by rules of procedure cannot be appealed from, thus the
Motion to the District Court is still open to Appeal to the State’s
highest court for State exhaustion following the District Court’s
proper, not a mere “court minute.” However, assuming arguendo
that she should appeal the court minute the Petitioner was not even
informed of the court minute until well after the instant Habeas
petition was filed with the Northern District.
It is from the above
circumstances that the Petitioner filed her instant petition with
the Northern District Court on May 14 2007. {note: The Exhumation Motion
was as a matter of law still pending…and still is, for that
matter!}
The Northern District Court
denied jurisdiction of the petition being procedurally time barred
on Nov 5 2007
The Petitioner, by the
above, has clearly shown she is entitled to be heard on the merits
and is not procedurally time bared.
2
STATEMENT OF FACTS OF
ISSUES
PRESENTED FOR REVIEW ON
APPEAL
From all presented in the
above statement of the case it is more than clear that the only
question that would keep this Petitioner from a thorough hearing by
this Court would be the timeliness of the petition to the Court of
the Northern District of Oklahoma.
In this, the Petitioner has
stated the facts of timing above. However, she further states
her Actual and Factual innocence and has made this claim throughout
the entire process, and further, she has shown by fact and evidence
that her claim of innocence has validity that any rational trier of
fact, given the full exposure to the facts and evidence, would have
come to a different verdict.
She further has sought to provide complete and unquestioned
evidence of both her innocence and the false statements presented
throughout these procedures by filing her verified Motion To Exhume
The Truth. This Motion
is still open.
Therefore, the facts are
clear that if either of two questions presented herein, in all their
aspects, are shown by this Petitioner that she must be given a
Certificate of Appealability and her Application for Habeas Corpus
must be judged on merits of Constitutional
proportions.
3
ISSUES
AND QUESTIONS OF LAW
A. HAS THE PETITIONER FILED HER
APPLICATION TO THE NORTHERN DISTRICT IN A TIMELY
MANNER?
The District Court, without
issuing the magistrates recommendation issued its order dismissing
the petition as untimely.
Due to no recommendation being offered of which the
Petitioner could respond, the statement of Judge Eagan, “Therefore,
unless Petitioner can demonstrate that she is entitled to other
statutory or equitable tolling of limitations period, her petition
filed May 14 2007 approximately 14 months after expiration of the
limitations period, is clearly untimely.” [Order of Judge Eagan on
November 5, 2007 at page 6], with a new point as Mrs. Schoonover was
unable to “demonstrate that she is entitled to another statutory
…” She now does, in
this Honorable Court, demonstrate that very question asked by Judge
Eagan.
Mrs. Schoonover shows this
Honorable Court by Statute, as requested but not allowed by Judge
Eagan [Judge Eagan dismissed without
Magistrate’s recommendation for Mrs. Schoonover to respond to and
cites statute and authority] her timeliness.
The district Court and
Judge Eagan’s order of November 5 2007 stated as reason the tolling
by the Post Conviction Relief of State District Court [of Mayes
County Oklahoma] on January 2, 2006 was invalid, was the fact that
the appeal of Mayes County denial, while timely before the OCCA,
that tolling is only during time a prisoner “is attempting, through
proper use of State Court procedures, …” [Now, see order of November
5 at page 5]. Further,
on the same page 5 of Judge Eagan’s order she states, “The
Petitioner failed to follow proper State Court procedures for
perfecting her Post Conviction Relief”, and further, due to what was
called improper state pleadings, “she is not entitled to tolling of
the time period between January 2, 2006 and April 10, 2006, the date
OCCA dismissed the Post Conviction Relief as improperly filed
without a signature.”
Citing Gibson, 232 F3d at 804.
The facts of law are
clearly in this Petitioner’s favor in the above matter. First, she was [and still
is] a Pro-se litigant unschooled and untrained in the procedure of
the mechanics of the law totally dependant upon ‘jail-house lawyers’
with extremely limited access to inadequate and outdated legal
libraries and her also untrained husband as a typist to ‘decipher
chicken scratches’ [as an example, see her calligraphic letter to
your Court Clerk dated/mailed January 10 2008 addressing exorbitant
impediments imposed by prison rules applicable to all pro-se
litigants] and make her documents literate, legible and presentable,
and as such her pro-se petition in the OCCA most certainly should
have been allowed to proceed with her Post Conviction Relief.
The cited Gibson,
233 R3d at 804 does not address the specific signature requirement
as would be indicated in Judge Eagan’s order of November 5 2007
[page 4 note footnote 1].
Instead, Gibson addresses only a broad aspect of time
not being tolled for an improperly filed petition. Judge Eagan cites correctly,
in 28 U.S.C.A. section 2244 [b] [2] the limitation period of AEDPA
is tolled during a “properly filed application for state post
conviction or OTHER collateral review.” {emphasis
added}
In the instant matter, the
Petitioner rightfully claims her petition by Oklahoma Statute 58,
Chapter 17A, sec 1702.1 and 1702.2, the Statutes creating the
Oklahoma Power of Attorney laws and a litany of cases supporting
[i.e., In re matter of Rolater estate, 542 P2d 219] was a
proper and legitimate petition as a matter of well established power
of attorney law.
The fact is, Oklahoma
Statutes agree with Mrs. Schoonover, and the OCCA should have
accepted Mr. John Schoonover’s signature as her attorney in
fact. A look at the
record reveals that even the Oklahoma Supreme Court accepted such
signature although wrongfully refusing jurisdiction. The attorney in fact
signature was a proper filing, and if the OCCA had not erred in its
refusal of signature, the instant petition would be mood, as
timeliness of the petition to the Northern District Court would have
been properly settled in Mrs. Schoonover’s
favour.
Assuming arguendo, that the
OCCA had legitimate questions of the signature’s authority, this
Court need look no further than its own rulings in deciding for Mrs.
Schoonover as a Pro-se litigant and holding the signature should
have been accepted by the OCCA. See Hall v. Bellman,
935 F.2d 1106 10 Cir. [1991].
The fact is, either as a
matter of law, as it is clear Oklahoma and Federal law would
uphold Mr. Schoonover’s signature as lawful Power of Attorney or
Attorney in fact signing the Post Conviction Review
application. It even
goes beyond this in the fact that a Pro-se Petitioner should not be
dismissed for a question of procedure when the Pro-se litigant could
construe her application to be not in fault but correct
procedure. As we have
seen, following acceptance of the signature by the District Court,
executed either properly or not as to procedure, this Petitioner had
every right to BELIEVE her Power of Attorney signature was
correct.
Even with all the above
stated, there can be no reason for the OCCA to sit on their hands
for over three months, thus allowing the Petitioner’s
remaining time to elapse, and this is precisely what
happened.
The conclusion of this
question must be that:
1., The Petition for Post
Conviction Relief was indeed timely, as the Power of Attorney
signature should have been accepted by the OCCA as a matter of law
either as fact of law or the fact the Pro-se litigant should have
been more liberally construed as to procedure.
The action of the OCCA, and
as a result of the OCCA’s error in not accepting Mrs. Schoonover’s
Post Conviction Relief application the Northern District denying her
Habeas Application, is basically denying a meaningfull access to the
Court. Gibson v.
Klingler, 232 F3e 779 [10 Cir 2000], Barnett v LeMaster,
167 F3d 1321 [10 Cir 1999], U.S. v. Simmonds, 111 F3d 737 [10
Cir 1997] and Hoggro v. Boone 150 F3d 1222 [10
Cir.].
2. Due to the timeliness of
the Post Conviction Relief the Habeas was
timely.
3. As the Motion To Exhume The
Truth is still pending for State Exhaustion the Habeas is timely,
and in following the Motion to Exhume, the Petitioner shows by the
State’s inaction in offering a true Court Order to appeal from any
further attempt at State Exhaustion would be fruitless. She therefore now prays this
Honorable Court to take jurisdiction in the Exhumation as a genuine
search for the Truth.
B. SHOULD THE PETITIONER BE
ALLOWED TO CONTINUE HER HABEAS ACTION AS ONE CLAIMING ACTUAL
INNOCENCE?
When an applicant has
articulated her claim of Actual Innocence in such a manner as to
create a question to be considered for review, she should be allowed
an unabridged hearing on the full merits of her
case.
Gilda Marie Schoonover has
maintained her innocence throughout the entire ordeal/process. She has shown reason to
support her claim by her Mother, Nora Stanart’s testimony at trial
and sworn Affidavit [attachment A] and numerous other facts as John
Schoonover’s sworn Affidavit [attachment B], in homologous
juxtaposition with Nora Stanart’s affidavit, clearly choreographs
events in a time frame that postulates the impossibility for Gilda
Marie Schoonover to have had any opportunity to have committed any
crime.
She has shown numerous
other facts and evidence.
She has shown a cloud of improper actions by the States
Investigator, George Klatt and the Prosecutor and Trial Court
impropriety flagrantly transgressing In re Murchinson, 349
U.S. 133 [1955] that should have caused considerable question as to
her receiving a fair trial with a reliable outcome.
Our courts have long held
that only after a fair trial with a reliable outcome can one be
rightfully sentenced.
[See Williamson v. Reynolds, 904 Supp. 1529 E.D. Okl.
1995].
This Court, as are all
involved with Jurisprudence, is well aware of the tragedy of Ronald
Williamson, wrongfully convicted due to a rush to judgment and bias
by all involved in the investigation and prosecution of his
case. There are
striking similarities in this matter here at bar. Gilda Marie Schoonover does
not face execution as did Mr. Williamson but she does face a death
sentence de facto from this wrongful conviction.
Without alluding to or at
least going into argument of the countless Constitution violations
that led to an improper conviction such as trial court bias [Liteky
v. U.S. 510 U.S. 540 [1994]], illegal procedure by perjured
affidavit for arrest warrant, false and extremely misleading
statements by the prosecutor, and all the other Constitution
violations suffered by this innocent incarcerate, she simply wants
more, as she has throughout, stated her innocence and claims that
having shown evidence of her innocence, claims her right as an
Actual/Factual innocent to pierce any and all procedural bars.
A simple look at the entire
record will support Mrs. Schoonover’s claim of innocence, and our
courts have held firmly to the overcoming of procedural bars by an
innocent. Schulp v.
Belo, 513 U.S. 296 [1995] and Murray v.
Carrier, 477 U.S. 478
[1986].
The conclusion of law drawn
from the herein presented, along with the entire record spread, must
be that Gilda Marie Schoonover has presented evidence, facts and a
reasonable showing that a rational trier of fact would find for her
innocence given an open unbiased look at all
involved.
As a matter of law she must
be allowed to proceed with her Habeas action and any procedural bars
must be dissolved.
4., Judge Eagan, in time baring
this Petitioner, did indeed apply the sec. 2244 AEDPA tolling
incorrectly. By
misinterpreting Oklahoma Power of Attorney laws and upholding the
OCCA’s timebar of the Petitioner’s Post Conviction Relief
application she wrongfully barred the Petitioner’s 2254
pleading.
Further, she wrongfully
denied Mrs. Schoonover’s Actual Innocence claim that would have
allowed her to be judged on her Constitution
claims.
5. The facts of innocence were
incorrectly decided as well as her pending pleadings that should
have tolled time allowing her current Petition for Habeas Relief to
be considered timely.
6. The District Court and Judge
Eagan simply did not look at the numerous Constitution Grounds for
relief after wrongfully time baring this Petitioner from her Habeas
Corpus pleading.
CONCLUSION
The Northern District of
Oklahoma wrongfully denied jurisdiction to judge the merits of
constitution issues due to improperly finding Mrs. Schoonover
procedurally bared by time [AEDPA].
The Petitioner has cited
law, fact, and evidence herein to support her position of being
timely.
There can be no question
from the record spread and facts presented in all proceedings to
date, including this pleading, that any rational trier of fact would
find first, different from Judge Eagan as to time bar, and secondly,
would find different as to her guilt or
innocence.
Therefore, premises
considered, your Petitioner prays this Honorable Court to overturn
the District Court’s time bar and:
1., Review the record and
all issues presented of Constitutional Merit and proportion and
order the Petitioner, Gilda Marie Schoonover freed from her unlawful
incarceration or, in the alternative:
2., After review of this
pleading and Appeal remand to the District Court with instructions
to review the Constitutional issues presented.
It is so
prayed.
Respectfully submitted,
SIGNED BY:
__________________________________
Gilda Marie Schoonover
404171
29501 Kickapoo
McLoud
Oklahoma
74851
I certify that exact copies
this document with attachments A & B have been mailed on this
date of January 14 to: Theodore Peeper, Asst Attorney General of
Oklahoma, 313 N.E. 21st
Street, Oklahoma City
Oklahoma, 73105
SIGNED BY:
___________________________________
Gilda Marie Schoonover
*********************************************************************************************
< ATTACHMENT B >
AFFIDAVIT OF
JOHN SCHOONOVER
Key Witness,
suppressed in violation of
Defendant’s
14th Amendment
In and for
the 10th Circuit Court, CASE NO: 07 - 5174
I, John Schoonover, of
sound mind, swear upon oath that the following is true as to the
events I was present at and witnessed hours prior to and within
seconds of the accident “Ear Witnessed” by Nora Stanart and within
seconds following the accident and for several pertinent hours
thereafter, the fateful evening of October 29,
1999:
The weather report just a
minute or so before 1830 hours indicated a possible freeze warning
meaning that I must mist my tender plants outside lest frost
probably bite them.
Benjamin was sitting in my lap at the time. Marie was in the kitchen
fixing chicken noodle soup for Benjamin’s supper, as that is what he
had asked for, and talking on the phone with her mother, Nora
Stanart, who had called a few minutes earlier.
I told Benjamin, “I’m going
out to water the flowers, let me know when supper is ready and I’ll
come back in.”
“Ok,
Daddy.”
Benjamin got down and he
walked to the front door with me.
I turned on the water and
started spraying mist on the plants on the front porch. Benjamin was ‘running his
circle’ and when he came to the glass storm door [the solid wood
door was left open] he pressed his face against the glass and I
sprayed a stream of water on the door startling him and he ‘jerked
back’ and laughed and run through the house in his ‘circle’ coming
back to the storm door a second and third time, pressing his face
against the glass each time as before and I sprayed a stream on the
door each time as before.
A simple game.
I left the front porch to
spray the rose bed in the centre of the front yard, approximately 25
feet directly out from the front door. I could see Benjamin over
the cannas through the front storm door as he ran through the living
room and disappearing into the kitchen area, coming back into sight
when he entered the living room. Three or four times he made
this circle while I watered the rose bed.
1
Then I proceeded east to
spray a freshly planted small Arkansas Apple tree. Doing so I passed a point
where I could, and did, look directly in through the dining room bay
window into the kitchen where I saw Marie, standing with her back to
the refrigerator, Benjamin in front of her, his back to me,
obviously holding a telephone to his right ear. In straight line distance I
was less than 36’ away.
In straight line distance the 5’ Arkansas Apple was less than
20’ away from the dining room window, diagonally. It took far less
than a minute to spray it and as I started walking toward another
flower bed the storm door rapidly screeched open and Marie yelled,
“Jonathan, come quick!
Something’s wrong with Ben!”
I said, “You don’t have to
yell, I’m right here” on the sidewalk about 6’ from the edge of the
porch.
Marie again yelled, “Well
get in here now!” and we both went hurried into the house where upon
entering the foyer, I saw Benjamin, on the edge of the dining
room carpet having what appeared to be an epileptic
seizure.
It was an emergency
situation that happened within a minute after I observed our boy
talking to his great grandmother on the phone. I did not feel there was
time to ruminate details and delay emergency action by asking, while
Benjamin was having a seizure, “Now, calm down and tell me exactly
what happened.” Action
was paramount.
Simply:
No words were spoken as I
stepped in what I was later to discover, pee, on the ceramic over
cement foyer, put my right hand under Benjamin’s posterior and
slipped my left hand & arm between his shoulders cradling his
head with my hand and picked him up saying, “Put some dry pants on
him, we’re taking him to the hospital” and proceeded down the
hallway to our bedroom.
“Shouldn’t we call an
ambulance?”
“No, we can get there
before they can get here even if they don’t get
lost.”
No other words were spoken
between Marie and I as I laid him on our bed and she jerked his wet
pants off and had dry pants on him before I could pick up the garage
door opener, push the button for the garage door to open [it works
from the bedroom], pick up a cell phone and push the ‘hospital’ key,
get car keys and billfold.
I picked Benjamin back up from the bed and started down the
hallway with him, Marie following and the only words spoken were by
me, “You drive.”
2
Marie opened the door
between the kitchen and the garage for me and closed it behind
her. She opened the
passenger door of our car for me and closed it and the garage door
had already been opened, by me, from the bedroom, with the
remote.
Marie backed out of the
garage, started down our approximately 75 foot driveway to the river gravel
county road and asked “Which way?” [there are two ways to go | 
