CASE NO. O7 CV 283
CVE-FHM
IN THE
UNITED STATES DISTRICT COURT
FOR
THE
NORTHERN
DISTRICT OF OKLAHOMA
Gilda Marie Schoonover
Petitioner
Vs.
Millicent Newton Embry, Warden, Mabel
Basset
Correctional Facility;
The State of Oklahoma;
Drew Edmondson, Attorney General, Oklahoma.
Respondents
APPLICATION FOR THE WRIT OF
HABEAS CORPUS
By A Prisoner in State Custody
Pursuant to 28 U.S.C. Section
2254
Gilda Marie Schoonover #404171
MBCC 29501
Kickapoo
Road
McLoud, Oklahoma 74851
IN THE
U.S. DISTRICT COURT FOR
THE
NORTHERN
DISTRICT
OF OKLAHOMA
Gilda Marie
Schoonover
]
Petitioner
]
]
Vs
]
CIV # 07 CV 283
CVE-FHM
]
Millicent Newton
Embry
]
Warden, MBCC
]
Filed 14 May, 2007
The State of
Oklahoma
]
Drew Edmondson
]
Attorney General of
Oklahoma
]
Respondents
]
State prisoner
seeking first 28 U.S.C 2254 Habeas Corpus
redress
HABEAS CORPUS
APPLICATIION
HABEAS CORPUS
APPLICATIION
Comes now the Petitioner, Gilda Marie Schoonover, appearing
herein Pro-se, a State prisoner of Oklahoma currently housed at
the Mabel Bassett Correctional Center, at 29501 Kickapoo Road,
McCloud, Oklahoma 74851 under the direct custody and care of
Millicent-Newton Embry, warden, seeking de novo review of errors
of a Constitutional magnitude which occurred both in the Mayes
County Oklahoma District Court and the Oklahoma Court of Criminal
Appeals.
These errors requiring reversal by federal law and
authority and the U.S. Supreme Court are as
follows:
The sentence under attack is
as follows:
1
1.
The
Honorable Judge Dynda Post, Mayes County district Court, State of
Oklahoma, entered judgment and
sentence in the Mayes County District Court case
cf-1999-271-B
2.
Conviction entered as
follows: Murder in
the First Degree in violation of Oklahoma Statute 21 Section
701.7C
3.
Petitioner’s conviction at bar
was from a retrial ordered by the Oklahoma Court of Criminal
Appeals when the original Judgment and Sentence was
overturned.
4.
Petitioner was sentenced to
life with possible parole.
5.
Not
guilty plea was entered and Petitioner was found guilty by jury
trial.
6.
Petitioner is in custody
pursuant to the sentence in the matter at bar at the
Mabel Bassett Correctional Center at 29501 Kickapoo, McCloud, Oklahoma 74851.
7.
Petitioner was defended by
James Rowan Of Oklahoma City who was paid by the
co-defendant.
8.
Appellate counsel was Katrina
Conrad Legler from the Oklahoma Indigent Defense
System.
9.
The
Oklahoma Court of Criminal Appeals affirmed the conviction,
Judgment and sentence in an opinion in new case number
F-2003-623
10.
The
Petitioner filed application for Post Conviction Relief pursuant
to Oklahoma Statute Title 22 section 1080-1089, counsel being
Kevin Adams, also paid by the co-defendant, and also filed a
pro-se supplemental brief in the Mayes County District Court. Judge Dynda Post denied
the Petitioner’s application improperly and improperly failed to
reach the merits of the Post Conviction
Relief.
11.
Pursuant to the rules of the
Oklahoma Court of Criminal Appeals and Oklahoma Statute Title 22
section 1080 et. Seq. to the Oklahoma Court of Criminal Appeals
the Petitioner appealed the District Court’s denial to the
Oklahoma Court of Criminal Appeals and the Court affirmed the
District Court’s ruling, again without reaching the
merits.
12.
Other post trial pleadings
were filed, namely with the Supreme Court of the State of
Oklahoma and the Oklahoma Bar
Association, again without relief.
2
13.
The
Petitioner has filed and has pending at this time a Motion To
Exhume The Truth [the body of the deceased], said action being an
attempt by the Petitioner to show, beyond any doubt, that false
and/or misleading testimony was presented; a denial of Due
Process.
14.
Other than the Motion To
Exhume The Truth, no other post conviction pleadings are pending
and no other pleadings than the above shown have been
filed.
15.
Gilda Marie
Schoonover
Gilda
Marie Schoonover
BRIEF IN
SUPPORT OF APPLICATION
FOR WRIT
OF HABEAS CORPUS PURSUANT TO 28 U.S.C. 2254
The Petitioner was charged with first degree murder in
violation of Oklahoma Statute 21 section
701.7c.
Following an improper arrest from a warrant obtained by a
perjured probable cause affidavit the petitioner was tried by jury
in Mayes County District Court for the State of Oklahoma in
the court of the honorable Terry McBride. The Petitioner was found
guilty and sentenced to life with possible
parole.
Following
formal sentencing and from said Judgment & Sentence the
Petitioner perfected an appeal to the Oklahoma Court of Criminal
Appeals.
The Oklahoma Court of Criminal Appeals overturned the
conviction in case number F-2001-916.
The Petitioner was again tried by jury in Mayes County
District Court for the State of Oklahoma in the court of the
honorable Dynda Post.
The Petitioner was found guilty and sentenced to life with
possible parole.
The Petitioner appealed this Judgment & Sentence via
State appointed OIDS Katrina Conrad Legler, counsel. The judgment and sentence
was affirmed by the Oklahoma Court of Criminal Appeals in case
number F-2003-623.
3
The Petitioner filed for Post Conviction Relief, Kevin
Adams as counsel as stated herein. The Petitioner filed a
pro-se supplement to this filing by Kevin Adams and the Post
Conviction Relief was denied without reaching the merits of the
case.
The Petitioner then filed an appeal of the decision of the
lower court’s denial to The Oklahoma Court of Criminal
Appeals.
This appeal was denied, again without reaching the merits
of the case.
This Petitioner has pending at this time a “Motion To
Exhume The Truth” to show beyond doubt the false and/or misleading
testimony presented at trial and/or gross Prosecutorial
Misconduct.
The Petitioner now offers this Application for the Great
Writ of Habeas Corpus pursuant to 28 U.S.C.
2254
JURISDICTIONAL
STATEMENT
The Petitioner’s Judgment & Sentence in the matter at
bar was affirmed by the Oklahoma Court of Criminal Appeals
September 8, 2004.
Current laws state the Petitioner has a burden to show her
deprivation of basic Rights Guaranteed by the Fourth, Fifth, Sixth
and Fourteenth Amendments to our U.S.
Constitution.
STATE
EXHAUSTION
The petitioner submits she has properly and adequately
advanced the same Constitutional Violations of the 4th,
5th, 6th, 8th, &
14th Amendments to our U.S. Constitution to the
Oklahoma Court of Criminal Appeals and therefore, pursuant to
Federal Law she has exhausted these herein claims of error of
Constitutional dimensions and proportions and is there now
available for a de novo Federal Review.
[see
attached denials]
4
ANTI
TERRIORISM AND EFFECTIVE DEATH PENALTY
ACT
[AEDPA]
Congress passed the AEDPA of 1966, publication l. no
104-132, 110 Statute 1214, 1996, to put a stop to successive and
abusive applications for the Federal Writ of Habeas Corpus, or
finality, and thus changed significantly the avenues for state
prisoners.
This Court has given the following rules in matters such as
the matter hear at bar.
1.
Per
AEDPA an applicant must perfect her petition within one year of
Judgment & sentence
becoming final.
2.
An
applicant, by this Court’s decisions, has an additional 90 days
for certiorari decisions of the applicant. See Locke v.
Staffie, 237 F3d 1269 [10 Cir. 2001] quoting Rhine v.
Boone, 182 F3d 1155 [10 Cir.]
3.
Post Conviction filings after
Judgment & Sentencing becomes final tolls time per
above.
4.
As
the Petitioner is offering this Honourable Court errors of
dimension and magnitude in violations of U.S. Constitutional and
Supreme Court Authority; and as this Petitioner is offering this
application of Actual/Factual Innocence and blatant miscarriage of
Justice [see House v. Bell, 126 S.Ct. 2064, Schlup v.
Delo, 513 U.S. 298 and Sawyer v. Whitley, 505 U.S. 333]
and as she has clearly presented and exhausted issues to the
highest State Court in Oklahoma this Petitioner has clearly shown
Jurisdictional Standing in this Honourable
Court.
SUBJECT
MATTER OF JURISDICTION
The Judgment & Sentencing was entered in the
Mayes County district Court, Pryor, Oklahoma and therefore, this
Court entertains a state prisoner’s attack of her underlying
conviction. See
Montez v. McKinny, -------F3d------[10 Circuit, 2006],
Bradshaw v. State, 86 F3d 104 [10 Circuit
1996].
5
A.
Subsection [1] was interpreted by the
majority of the Supreme Court Justices and two conditions were set
out to be satisfied before Federal Jurisdiction can be invoked:
1, Contrary decisions of state
court to that of established
law
as determined by the
Supreme Court, and
2, Involved an unreasonable
application of that same controlling Federal Law. Wilson v. Tayler,
529 U.S. 412-413, 120 S.Ct
1465 [2000]; also see Keller v. Lawkins, 251 F3d 408 [3
circuit 2001]; Hawkens v. Mullens, 291 F3d 658 [10 Circuit
2002]; Multteao v. Superintendant SCI. Albiun, 171 F3d 877,
891 [3 Circuit 1991]; enbanc: Ramano v. Gibson, 278 F3d
1145, 1150
[10 Circuit 2002]; Enberg
v. Wyoming, 205 F3d 1109 [10
Circuit 2001].
In the facts of this case the Oklahoma Court of application
of law and authority in the matter of Due Process of law
established by the 5th and 14th amendments
to our U.S. Constitution, the Illegal Seizure established by the
4th Amendment to our U.S. Constitution and made
applicable the State through the 14th Amendment, the
protection of self incrimination as guaranteed by the
5th Amendment again made applicable through the
14th Amendment and Right to Counsel in all critical
stages of a procedure as guaranteed by the 6th
Amendment, all exacerbated by Cruel and Unusual Punishment in
violation of the 8th Amendment clearly show the faults
in her case.
B. The
issues being brought before this Honourable Court are:
l.
Actual/Factual Innocence [miscarriage of Justice] in
violation of the 5th and 14th Amendment.
2. Illegal
arrest ‘seizure’ of the petitioner in violation of the
4th Amendment.
3.
Evidence does not support the conviction in violation of
the 5th & 14th
Amendments.
4.
Trial counsel was ineffective and/or rendered ineffective
in violation of the 6th Amendment.
5.
Appellate counsel was ineffective and/or rendered
ineffective in violation of the 6th
Amendment.
6
6.
The State withheld evidence or knowledge of exculpatory
nature [Brady Violations] a violation of the 5th and
14th Amendments.
7.
Pretrial publicity and statements made to the press and
public by the Trial Judge prejudiced the Defendant beyond repair,
violations of the 5th & 14th
Amendments.
8.
The prosecutor failed to stay within guidelines and
cannons/rules of both the State of Oklahoma Bar Association and the
American Bar Association by seeking conviction, not Truth or
Justice violating the 5th & 14th
Amendments.
9.
Other countless errors and incidents of Prosecutorial
Misconduct poisoned the trial in violation of the 5th
& 14th Amendments.
10.
Judicial bias and misconduct by the Trial Court [Judge
Dynda Post] rendered a fair trial with reliable outcome
impossible, violations of the 5th & 14th
Amendments
11.
Failure to instruct on lesser offenses was prejudicial to
the Defendant, violations of the 5th &
14th Amendments.
12. Sentence was
excessive violating the 8th Amendment.
13
Cumulative errors call for the Writ to
issue.
BRIEF IN
SUPPORT
STATEMENT OF
FACTS
The
Defendant/Petitioner was to be the adoptive mother of Benjamin
Michael Stanart/Schoonover, the victim, and, with her husband and
co-defendant John Schoonover, Mrs. Schoonover was the primary
caregiver of the deceased and was such at the time of an accident
that took his life.
The evening of October 31, 1999, the final weather report
following the 6PM news had just concluded with a frost
warning. Mrs.
Schoonover was talking on the telephone with her mother, Nora
Stanart, and fixing supper for Benjamin. Mr. Schoonover, John, got
up and told Benjamin, his adoptive son, that he was going outside
to water the plants and to let him [John} know when supper was
ready.
7
Benjamin began running his
‘circle’ through the house.
This ‘circle’ involved a ‘circle’ of four joining ‘rooms’
including a ceramic tile on cement foyer. The remainder of the
surface was carpeted.
The co-defendant, John, while watering from the front
porch, could clearly see into the house and when Benjamin run up
to the [inside of the] full glass panel front storm door John
sprayed water on the [outside of the] door. Benjamin responded and
continued another ‘circle’ and this happened 3-4 times. John then left the front
porch and went to the center of the elevated front yard to
continue watering.
John could clearly see into the kitchen and breakfast area
through the dining room window as well as through the glass storm
door into the tile foyer, hall and family room that joined the
breakfast area. John
observed Benjamin making at least two circles of the area.
As John walked from the front yard to another flower bed he
could and did look into the well lit kitchen through the dining
room bay windows and saw his wife, the Defendant, standing with
her back to the refrigerator apparently watching Benjamin talk on
the phone with his great grandmother, Nora Stanart, as was a
nightly occurrence.
Testimony of Nora Stanart was that she was talking with
Benjamin and the conversation was short, consisting of small talk
including how he was, ‘I’m fine.” What he was doing to which he
replied, ‘running and playing’ and in answer to what mama was
doing, ‘fixing me chicken noodle soup ‘cause that’s what I wanted’
and to What is daddy doin’?, ‘outside watering the roses.’ John ‘saw’ part of the
conversation take place.
Then John proceeded to another flower bed that placed him
out of sight of the inside of the house during which time,
according to the testimony of Nora Stanart, Mrs. Schoonover said,
“I’ve got to go, Mom, something’s happened to Ben.” And she
dropped the phone upside down on the kitchen cabinet…still in the
on mode. Nora Stanart
heard Mrs. Schoonover call out, “Ben! Ben! Talk to me, Ben!” Mrs.
Schoonover had kneeled down and picked Benjamin up from the
ceramic tile floor and when she could get no response and she
twisted her trunk to lay Benjamin on the carpet in the adjacent
dining room.
8
Nora Stanart heard Mrs. Schoonover open the glass door and
yell “John!”
John answered but Nora could not hear, “You don’t have to
yell, I’m just right here.” But Nora did hear, “Get in here,
Now!”
Nora Stanart could and did hear the glass door close but
could not hear the low volume short conversation, initiated by
John, as he picked Benjamin up from the carpeted dining room
floor, “Put some dry pants on him, we’re taking him to the
hospital.” As the
pair started to the bedroom to get the car keys, garage door
opener, wallet and cellular phones Mrs. Schoonover suggested,
“Shouldn’t we call for an ambulance?” to which John replied, “No,
we can get to a hospital before an ambulance gets here…even if it
doesn’t get lost.”
Simultaneously Benjamin’s fresh pull-ups were on him before
John had completed grabbing the above mentioned items and dialed
in the pre-programmed phone number to the Pryor
Hospital. John then pushed the
button on the garage door opener and Nora Stanart, not being
allowed to testify to the following: still listening on the phone,
heard the garage door open.
Nora Stanart then heard the door to the garage slam shut
and then heard the garage door close…and after a moment of silence
hung up her phone.
She testified, “The next thing I knew they were at the
hospital.”
Mrs.
Schoonover was in a state of panic at St. Francis Hospital and required sedation
which rendered her incoherent. Dr. Barton asked John what
happened and John told him all he knew was that Benjamin was
running and playing and had apparently had a seizure and
fallen.
Dr. Barton asked what Benjamin had fallen on and, John,
having picked Benjamin off the carpeted dining room floor, unaware
that Marie had moved him from the ceramic foyer, stated, “He fell
on carpet.” Dr.
Barton barked, “He could not have gotten this injury falling on
carpet.” John said,
unknowingly erroneously, “He had to have as that is where he was
when I picked him up.”
Dr. Barton then barked at John, “You’re lying to me!!” and
left the room. Jim
Stanart, Benjamin’s Grandfather, present, quietly said to John,
“If my boy dies I’ll do everything I can to see to it that you go
down for murder” and left the waiting room.
9
NOTE
