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
1.In this brief the Petitioner
will be referred to as
Defendant,
Petitioner, or by name.
2.O.R. designates Original
Record
3.TR designates various trial
transcripts
4.A. and B. H. TR designates
initial appearance
and bail hearing
transcript.
5.
P.H. designates Preliminary
hearing.
THE
PETITIONER NOW BRINGS BROAD GROUNDS
FOR
RELIEF WITH ARGUMENT AND AUTHORITY
GROUND
ONE
THE
PETITIONER IS ACTUALLY AND FACTUALLY INNOCENT
AND HAS
INCURRED A GROSS MISCARRIAGE OF JUSTICE
This Petitioner comes before this Honourable Court with her
claim of being both Actually and Factually Innocent of the charge
which she has long suffered through wrongful
incarceration.
Our courts have long held that a claim of Actual Innocence
can never be barred when it rises to the point of fundamental
miscarriage of Justice.
See: House v. Bell
126 S.Ct. 2064 [June 12, 2006], Schulp v. Delo, 513
U.S. 298 and
Sawyer v. Whitley 505 U.S. 333.
The courts have strictly defined and made clear the
threshold of an actual innocence claim stating “Actual innocence
means factual innocence, not merely legal insufficiency…the
government is not limited to existing record…” Bosley v.
U.S. 523
U.S. 614
[2998].
10
In the instant matter the claim, is supported, will
exonerate this Defendant, and throughout this application it will
be seen as more than clear that this Defendant, under any doctrine
of our courts’ decisions, passes this threshold of Actual
Innocence. Jackson v. Virginia 433 U.S. 307 and in re Winship
397 U.S. 358.
Our courts have long held that the conviction and
sentencing of one actually innocent of a crime is “repugnant to
our very system of values.”
See Bousley, supra.
The conviction of one actually and factually innocent is
also, obviously, a denial of Due Process and overcomes all
procedural bars.
Blacks Law Dictionary, 8th edition defines
FUNDAMENTAL MISCARRIAGE OF JUSTICE exception {to procedural bar}
as follows:
“The doctrine allowing a
federal court in a Habeas Corpus proceeding to address a claim of
constitutional error that, although ordinarily irreversible, is
subject to review because of a state-court procedural default that
rendered the proceedings basically unfair. For the exception to
apply, among other things, the petitioner must show by a
preponderance of the evidence that constitutional error resulted
in the conviction of one who is actually
innocent.”
Actual Factual
innocence is not an appealable issue in itself, but a gateway to
go beyond procedural bars of issues of Constitutional
magnitude. House
v. Bell, Schulp v. Belo, Sawyer v. Whitley,
Hall, supra,
McClesky v. Zant 499 U.S. 467, Kuhlmann v.
Wilson 477 U.S. 436 and in following guidelines established
above a court should take as true such claims as presented at
first examination.
It is as stated, further true that one who is actually and
factually innocent has lost Due Process.
Blacks Law Dictionary, 7th edition defines due
process in
part as follows: “…fundamental requisite of
Due Process is the opportunity to be heard,…aside from all else,
Due Process means fundamental fairness and substantial
Justice.”
For reasons stated in the following grounds, it becomes
clear that Mrs. Schoonover was muzzled as to defense and not
“allowed the opportunity to be heard,” and through this and other
failures was “denied fairness and substantial
Justice.”
11
This Petitioner claims Actual Innocence as per
Henry v. Winship, Jackson v. Virginia, both
supra. No proof has
been offered by the state as to guilt of the charge, as there is
no guilt. The
Petitioner easily passes the threshold of Actual Innocence
per the preceding authority and must be heard on
merit.
GROUND
TWO
THE PETITIONER
WAS SEIZED AND ARRESTED ILLEGALLY
IN VIOLATION OF
THE 4TH AMENDMENT
Following an accident that took the life of her son, Mrs.
Schoonover and husband/co-defendant John E. Schoonover were
arrested on November 16, 1999 as a result of a perjured and
blatantly and knowingly false Probable Cause Affidavit filed with
the District Court of Mayes County on November 16,
1999. George Klatt,
the investigator for the District Attorney, who had a questionable
record in his past, and has since been shown to be involved in
illegal activity, entered a fabricated Probable Cause Affidavit to
the Honorable Terry McBride who, from the false information, and
without inquiry, issued an improper Warrant of
Arrest.
When the illegally gained arrest was obtained by the
Perjured Affidavit of George Klatt, said Affidavit given under Mr.
Klatt’s oath, it follows that when the error remained unchecked
and unrehabilitated when it became clear that the Statements of
Mr. Klatt was, under oath, a known lie, and when upon this
discovery at Bail Hearing [see Attachment “A” BH pages 52-56,
FILED IN THE DISTRICT COURT MAYES CO. OKLAHOMA April 03 2007], the
liberty of the Defendant, illegally restrained, was not returned
[see 4th and 5th Amendments at the ‘liberty
interest clause’], it is clear plain and reversible error
occurred, as it ensued that the conviction was based, at least in
large part, on evidence or testimony {Affidavit under oath} known
to be false.
There can be no denial that the Defendant’s Right to Due
Process was breached by the illegal arrest from the Perjured
Affidavit for Warrant.
See Miller v. Page, 386 U.S. 1 [1967].
12
Further, Defendant claims it exacerbates “ineffective
assistance of counsel” [Ground Four] when defense counsel did not
file a Motion To Quash when this known perjury was
confirmed at the Bond Hearing.
note: The
defendant was unaware of the existence
of the ‘hidden’ transcript
until 2007 as it had
Never been transcribed and
was Not filed until April 3, 2007
More specific to
this ground are the following: “A warrant
unconstitutionally obtained, whether for search or arrest, without
genuine probable cause, not mere suspicion, used to obtain such
warrant is poison and must be reversed.” U.S. v.
Leon 486
U.S. 897 [1994]; and, “if a barebones, boiler plate affidavit” was
insufficient to justify a warrant, again, whether for search or
arrest, and caused a reversal [see U.S. v.
Weaver 99 F3d 1372 [6th Cir.] [1996], an affidavit
containing known perjury must be more seen as a cause for
reversal, and has long been held that the 4th Amendment
protects people, not just property.
Our courts go even further to the cause at hand in U.S.
v. Alverez 127 F3d 372 [5th Cir. 1997] by ruling
that “a warrant affidavit containing a false statement in
reckless disregard for truth, must bring about a reversal of
conviction from the poison, illegal arrest which cannot be
cured.” This is
precisely the matter here at bar.
The arrest and thus all that followed was illegal and this
Court must issue its Great Writ and free this
Defendant.
GROUND
THREE
EVIDENCE DOES
NOT SUPPORT THE CONVICTION
A conviction in which the evidence is not complete enough
to uphold a conviction, when looked at in light most favorable to
the State, must be reversed.
See Jackson v.
Virginia, 433 U.S. 307 and in re Winship
397 U.S.
358.
13
Due Process requires that the State prove beyond a
reasonable doubt every fact necessary to the crime of which an
accused is charged.
See Gates v. State 754 P2d 882 [Ok. Cr. 1988];
U.S.
Constitution Amendments 5 & 14; Oklahoma
Constitution Article II section 7. Jackson v.
Virginia, supra, as well as Oklahoma Authorities Penninger
v. State 721 P2d 1338 [Ok. Cr. 1986] and Sbuhler v.
State 709 P2d 202 [Ok Cr. 1985] lay out clearly test for
sufficiency of evidence to support a conviction stating, “After
reviewing the evidence in light most favorable to the prosecution,
any rational trier of fact could have found the elements of the
crime charged beyond a reasonable doubt.”
In the instant matter the State fell far short of
presenting truthful evidence sufficient to support the
conviction at bar when judged by the above standards and the Great
Writ must issue.
[Attachment “G”,
‘reasonable doubt’]
GROUND FOUR
TRIAL COUNSEL
WAS INEFFECTIVE
OR RENDERED
INEFFECTIVE
Trial counsel’s effectiveness should be challenged at the
level of appeals that Mrs. Schoonover has reached, that is to say
at collateral review.
In Kimmelman v. Morrison 477 U.S. 365, 378, [1986]
the court held: “in general, no comparable, meaningful opportunity
exists for the full and fair litigation of Habeas petitioner’s
ineffective assistance claim at trial or on direct
review.”
To expand
Kimmelman, the 10th Circuit Court of Appeals
held in English v. Cody 176 F3d 1257 [10 Cir. 1998], the
following: “In order
for a criminal defendant to adequately vindicate his
6th Amendment right to effective counsel, he must be
allowed to obtain an objective assessment of trial counsel’s
performance and must be allowed to adequately develop the factual
basis for any claim of ineffectiveness.”
The assessment of counsel per English must also
attach to appellate counsel as does Kimmelman, id. [see
ground 5].
14
It is clear from the above that the Petitioner is ripe for
such review and must be shown to have overcome any procedural
bar.
Strickland
v. Washington 466 U.S. 688 [1984] states, “The purpose of the
effective assistance guarantee of the 6th Amendment is
to insure the criminal defendant’s receive a fair trial.” Strickland at 689
stated that a defendant raising claim must show acts of omissions
beyond professional judgment and must show that but for such
omissions, in light of circumstances the outcome would be
different.
The Court held, however, that errors of counsel must be
beyond reasonable standards.
In the instant matter at bar, counsel failed under
Strickland when he failed to object to hearsay testimony at
several points especially to statements attributed to John
Schoonover.
Generally, TR page 566 line 14, page 567 line 4, page 567
line 12, page 569 line 23, numerous specific statements from
witnesses were more hearsay; Dr. Delong page 637 lines 14-25
testified that John was outside but only knew this through
hearsay. See also Dr.
Delong testimony at TR page 639 line 8. Counsel failed to review
this witness.
Dr. Gietzen TR page 657 lines 9-12 again hearsay concerning
John Schoonover’s statement and hearsay statement was not
corroborated.
Stephe Hunter, TR page 668 lines 18-21 again testifying to
hearsay statements by co-defendant.
At no point were these hearsay statements by a co-defendant
challenged or strongly objected to. Knowledge of these
statements being hearsay and not allowed by the court would
drastically change the colour of this Defendant and therefore can
be seen as nothing less than ineffective counsel.
At other points during the trial counsel was rendered
ineffective by biased trial court. { This will be expounded
at Grounds 9 and 10.}
The trial court itself rendered counsel ineffective by not
allowing Mrs. Schoonover to present and support her defense by not
allowing such simple entry as the fact that a house that had been
lived in by the Defendant and her husband for three years
contained furniture into the trial closing statement.
15
[TR pages
1286,1287 Attachment “B”] Such testimony/evidence would have
supported the offered defense, that is, that an accident occurred,
not a crime.
As it was, counsel was not ineffective per-se, in that he
asked for and moved for a mistrial. However, in any event
counsel was ineffective in not being prepared for such action by
the trial court as to previous statements and actions by Judge
Post that had shown complete bias. Counsel should have
earlier laid foundation for entry of evidence, and although the
fact was rendered ineffective by the court, he was nonetheless
ineffective.
Counsel can be
further seen as ineffective for failure to summon and subpoena George
Klatt, the States Chief Investigator, and establish by the record
a perjurer…namely George Klatt, authored and brought forth under
oath, the poisoned Probable Cause Affidavit that was known
poisoned, by the Prosecuting Attorney Charles Ramsey, as
unchallenged sworn testimony of State’s indorsed witnesses Carol
Frye and Judy Girdner at the Bond Hearing [attachment “A”]
unequivocally proves, in concert with Mr. Ramsey’s
admission.
Any point of a criminal procedure in which counsel is
ineffective calls for reversal of the conviction and this Writ,
due to
such failure of
such
counsel for
whatever reason must issue The Great Writ and this Court must
order relief as prayed herein.
GROUND
FIVE
APPELLATE COUNSEL WAS
INEFFECTIVE AND/OR RENDERED INEFFECTIVE
As in ground 4, appellate counsel’s ineffectiveness should
be brought at this stage, that is, collateral review. See Killiman v.
Morrison supra and English v. Cody
supra.
Further, the same standards of effectiveness under
Strickland v. Washington supra are
applied to the appellate counsel.
In the instant matter appellate counsel Katrina
Conrad-Legler, P.O.Box 926, Norman, Oklahoma 73070-0926 [bar # 016953]
fell short both due to her own failure
16
and as in the case of trial
counsel was rendered ineffective either in fact or in her thought
by rules of her position, that being counsel with the Oklahoma
Indigent Defense System.
Appellate counsel failed to impeach the venue due to
publicity and Judge Post’s statements which beyond question showed
bias of the trial court called for such change of venue. Further grievous displays
of Prosecutorial Misconduct not being brought to Appeal and
finally failure to call attention to the ineffectiveness of Trial
Counsel where in all instances complete failure of appellate
counsel. Appellate counsel was also impeded by policy from
submitting any rebuttal to the State’s traverse.
In numerous instances of the aforementioned appellate
counsel Conrad-Legler believed, even if not factual, that her
rules that the OIDS offices imposed caused her to not raise issues
on direct appeal, especially ineffective assistance of trial
counsel [see
attachment “C”
statements of correspondence from herself to co-defendant John
Schoonover].
Whether she was induced/rendered ineffective by rules or
simply due to her own shortcomings she was ineffective and due to
such Mrs. Schoonover was denied effective counsel and Due Process
as provided by the 5th, 6th, and
14th Amendments to our U.S. Constitution and this Court
must order relief.
GROUND
SIX
THE
STATE WITHELD EVIDENCE OF AN EXCULPATORY
NATURE
A prosecutor or the state
cannot withhold evidence of an exculpatory nature, or evidence
that is favourable to a defendant that may cause her to be
exonerated. This has
long been held and extended by our courts and is a solid benchmark
that an accused should be able to rely upon. The benchmark for this
edict has, for decades, been Brady v. Maryland, 373
U.S. 83,
1963.
17
Throughout
the proceedings in this matter the government has sought to, and
has in fact withheld evidence that would be more than favourable
to the defendant in violation of Brady keeping her from
receiving a fair trial with a reliable outcome, thus evaporating
her right to Due Process as a citizen is guaranteed under the
5th & 14th Amendment to our U.S.
Constitution.
Many instances of Brady violations occurred before
and during the trial ,
and these violations have continued until today denying Mrs.
Schoonover not only a fair trial, but now denying her adequate
means in which to extricate herself in which she has lost her son
and has now lost her liberty, if not her
life.
The Government first, as
discussed in ground two, withheld from the jury, and used for
arrest, perjured testimony in the guise of an affidavit sworn
under oath for arrest.
In U.S. v. Vozzella,
124 F3d 389
2nd Circuit [1997] our
courts have held
that evidence of perjured testimony should be disclosed. This was violated in the
matter at bar.
In Kyles v. Whitley 55 F3d 1456 9th
Circuit 1995 our courts spoke to the failure to turn over evidence
favourable to a defendant, especially evidence sufficient to have
caused a change in the results of a trial.
In the instant matter, the government spoke of a mini
cassette tape on which co defendant John Schoonover allegedly said
“this will prove Marie did it,” but despite the rhetoric and
claims the Government never produced this “Damning” tape, although
the prosecutor was in possession of it. The jury, hearing a blank
tape after hearing the state alluding to its content would
certainly have caused any reasonable jurist to question the
veracity of the State and the State’s entire case, as it should
the wise Jurist reading this petition.
In US V. Hanna, 55 F3d 1456 9th Circuit
1995 the court held it is the responsibility of a prosecutor to
know of Brady material even if it is not in his
possession. As will
be stated in Ground Eight the prosecutor never sought truth, only
a conviction, only a hide on his wall. In the issue in this
ground he never sought to examine for truth and Brady
material was not presented to the defense.
18
It should further be noted by this court that it is not
necessary for Brady or other discovery violations to be timely
objected to in order to preserve them for appeal. McCambridge v. Hall
266 F3d 12 1st Circuit 2001.
The petitioner stated that evidence had been hidden or an
attempt to withhold was made by the Government, and further said
it continues until today.
In this matter the petitioner has moved the trial court to
“Exhume The Truth” that is to say the body of the deceased. No objections have come
except from the Government.
The petitioner now boldly asserts that the Mayes County
Oklahoma District Attorney has blocked all attempts at discovering
the truth. The State
has never sought the truth.
The petitioner boldly claims the failure to acquiesce to
the exhumation is a withholding of exculpatory evidence by stating
the exhumation of the deceased and a through medical autopsy would
show the State’s case was based on a falsehood and innuendo
stated in court by a
conviction seeking prosecutor, not one seeking the truth.
[Motion To Exhume, “Attachment
“D”]
GROUND
SEVEN
PRETRIAL
PUBLICITY AND STATEMENTS MADE BY TRIAL COURT PREJUDICED THE
DEFENDANT BEYOND REPAIR
When pretrial publicity becomes so extreme that a fair
trial with a reliable outcome is negated, the publicity becomes a
Constitutional Violation.
Due process, the very basis of which is a fair trial with a
reliable outcome is violated and denied. The 5th
Amendment to our U. S. Constitution guarantees Due Process and
this protection is passed to the states through our
14th Amendment.
From the outset in this matter there were shocking, false
statements made to the press. This included the first
trial and was exacerbated prior to the second trial by prejudicial
statements made by the trial judge herself and jurors were made
aware of at trial.
19
Judge Post
referred publicly to newspapers accessible to the jury pool that
the deceased was a “Murder Victim” when no evidence had been
presented. After the
previous outlandish and false statement being made to the press
there can be no question the jury pool was tainted and poisoned
beyond repair. [see
attachment “E”]
While a more complete diagnosis of judge Post’s clear
prejudice and bias is made in ground ten the petitioner in this
ground simply states that the Due Process factor of all pretrial
trial publicity, but especially the fact that a judge, whom our
citizens are taught to believe made such statements to the press
is irreparable. This
verdict; judgment & sentence must be set aside and reversed
and the Great Writ issued.
GROUND
EIGHT
THE
PROSECUTOR FAILED TO STAY WITHINTHE
GUIDELINES
AND CANNONS OF ETHICSOF THE
OKLAHOMA BAR ASSOCIATIONAND THE AMERICAN BAR
ASSOCIATION
A basic tenant of all prosecutions in a criminal matter is
that the prosecutor must seek truth, not convictions. This falls
under Rule 5 of the Oklahoma Bar. When this Ground, taken in
conjunction with Ground Nine it becomes clear without question
there was no search for truth and thus no fair trial
possible.
During a cigarette break in
the first trial the Prosecutor openly stated to Gerald Hilsher: “I
haven’t a clue to what actually happened in that house.” He was certainly not this
honest and open with the jury.
To vehemently seek a conviction when he is not comfortable
with his own evidence is foreign to our very sense of
fairness. To continue
to hide the truth is even worse. See Ground
Six.
Due
Process left the proceedings at the hospital on October 31
1999. This is only a
small example. This
wrong can only be righted by reversal and issuance of this Great
Writ.
20
GROUND
NINE
THERE WERE
COUNTLESS INSTANCES OF PROSECUTORIAL
MISCONDUCT
Besides the above mentioned ethics violations and Brady
violations the Prosecutor made numerous prejudicial statements
that preempted Mrs. Schoonover any semblance of justice or due
process.
Throughout the trial the Prosecutor skirted with the
boundary of Prosecutor Misconduct in statements in
questioning. That
line was more than deliberately crossed when on more than one
occasion he deliberately misled the jury by deliberately
misquoting testimony.
Especially expert testimony, from which a jury gleans the
bulk of its knowledge in a matter such as this, regarding
peripheral Hemorrhaging in accidental trauma:
Question,
“You’re not familiar with any child that has suffered retinal
hemorrhages,…from a short fall.” Answer, “Well,
yeah, Remember we discussed retinal hemorrhages as being
different.” And,
“Sure. There have
been reports of a, or a few retinal hemorrhages or undescribed
retinal hemorrhages in short falls.” Dr. Block, TR 494 and,
“Until definitive studies are available, it would seem prudent to
avoid rigid opinion invoking the problematic ‘always’ or
‘never’ concepts.” Question, “And you still believe that we
need more research.” Answer, “Absolutely.” Dr. Block, TR 508.
In his
closing, the prosecutor gospeled: “The importance of that,
ladies and gentlemen, is he said there has never been a
case of accidental injury where there had been peripheral
hemorrhages…in all of his research, all of the time he has spent,
he has never seen a documented case of an accidental injury
with those peripheral hemorrhages. …you only get them in
intentional injuries.” Charles Ramsey, TR 717
Dr. Krouse testified: “The finding of a single fairly
profound, or obviously lethal head injury, and the discovery of
the unresponsive and unconscious child on a very hard and
unyielding surface, particularly if there is an elevated area near
by from which he might have fallen, bring into play the
possibility
21
that it was an
accident, that it was a fall and that it was a single impact that
caused this fatal injury. …A more yielding surface,
like a wooden floor with a yielding sub-floor under it or a felt
padding, would be less likely to cause this serious of an injury
than an unyielding concrete rock-like surface.” TR
627
The prosecutor gospeled: “Dr. Krouse testified that Ben
could not have run around the house and fallen and did this to
himself. That
this injury could not have happened from a fall. TR 758, 759…..further,
“…ladies and gentlemen, he’s been paid by the defendants to render
an opinion and that opinion has got to be that this was
accidental. Mr.
Madison says money is not an object. Well, ladies and
gentlemen, by the time he gets through he’s going to get paid 4 or
5,000 plus. He has
contracts with the indigent defense attorneys in Oklahoma,
he does private cases, testifies in other cases for defense
attorneys. You start
talking 4 or $5,000.00 a case and you start testifying several
times a month, ladies and gentlemen, that’s a chunk of change.
And they’re not
going to call him up here unless he can testify that it’s an
accident.”
See U.S. v. Richardson 161 F3d 439 DC
Cir. [1999] and U.S. v. Rodriques 159 F3d 439 DC cir.
[1999].
Terrant County Texas Coroner Krouse’s impeccable
reputation, being so attacked, is abhorrent. This suggests bribery and
that is ludicrous, if not plain slanderous. Further the prosecutors
closing refers to matters of material issues that were not in
evidence. U.S. v.
Maddox 156 F3d 1280 DC Cir. [1999]. This also goes to the tape
mentioned in Ground Six.
The
first act of Prosecutorial Misconduct was prior to the trial,
however, and the stigma of that error never left the
proceedings. That was the asking
for a warrant of arrest based on George Klatt’s sworn
Affidavit. Perhaps
Mr. Ramsey thought the Affidavit to be true and factual at the
time he asked the court for it to issue the warrant, but there can
be no doubt that by his own admission he knew of the perjury
committed by George Klatt in the Affidavit prior to bail hearing and
never tried to cure the harm done illegally to the defendants.
(see Ground Two and bond hearing pages 53-56). Following the initial error
the perjury was never cured or rehabilitated and reliance on and
use of known perjury is prohibited.
22
See Killian
v. Poole 254 F3d 1204
9th
Circuit. [2002] and U.S. v. LaPage 231 F3d
488 9th Cir. [2000].
The final act during the second trial was during his
closing when he Misquoted Dr. Krouse, lamented with pantomime to
the jury [TR 1336]: “Even Dr. Krouse said Benjamin did not get
the massive injuries that he had, the busted occipital bone,
the tremendous brain swelling, the worse Dr. Barton has ever seen
from a fall of 34 inches on a tile floor.” Mr. Adams:
“Judge, can we approach, please?...It was never said that it could
not happen. It was
stated that it was unlikely, but to come in and recharacterize it
and say it as being absolutely could not happen is a
mischaracterization of the evidence…” Judge Post: “The objection will be
overruled.”
Dr. Krouse
factually testified to the question, “And if Benjamin
Schoonover was
running through the house, got up on any kind of furniture at all
and fell any distance at all, could that have caused the injuries
you saw in Benjamin Schoonover?” Answer, [TR 1202], “In
some circumstances, I believe that could
happen.”
The hospital report, attached to Nora Stanart’s affidavit
[Attachment “E”] is clear that it was a “Closed head injury”
“No fractures visible.” This was suppressed
earlier during the trial.
Nonetheless, Mr. Ramsey lamented in pantomime, [TR 1338],
“I have a little boy that went to Saint Francis Hospital with his brain
squishing out the top of
his head..” And [TR
1340], “If your child had his brains gushing out the top of
his head…”
To this date the Government, through Mr. Ramsey and his
misconduct have deterred the truth and hidden evidence, including
the failure to allow an exhumation that would shed light on the
facts and the truth would become obviously clear, but when a
prosecutor’s entire case is based on perjury, one can understand
this action.
Cumulative acts of Prosecutorial Misconducts as is the case
here at bar call for reversal. See U.S. v.
Francis 170 F3d 546 6th Circuit
[1999].
In
light of the above it is clear this matter is ripe for
reversal.
23
GROUND
TEN
JUDICIAL BIAS
AND MISCONDUCT BY THE TRIAL COURT
RENDERED A FAIR
TRIAL WITH A RELIABLE OUTCOME IMPOSSIBLE
When a trial judge is bias there can be no Due
Process. A trial
judge has great latitude in her decisions, and there can be no
question these decisions are often the reason for a trial’s
outcome.
In the instant matter here at bar the trial judge displayed
prejudice before, during, and after the trial. Displays by Judge Post
leave no question of her bias, and this Petitioner takes no
pleasure in making such charges against a judge in our
judiciary. To do so
one must have sincere belief and solid reason/evidence for such
claims. This
Petitioner does!
Prior to trial judge post made a public statement to the
press stating a murder had taken place when no trial had even
commenced, and a clear indication of her bias {Attachment
“F”}.
Footnote: Both statements were incorrect,
there was no murder OR bruises. Exacerbated by statements
to jury, TR 17, 20, with attachment.
{Black’s Law Dictionary,
8th Edition: “Victim, n. A person harmed by a crime, tort, or other
wrong.”}
It is long been held that to insure Due Process there can
be not even a hint of bias on the part of the trial court. See
in re Murchison 349 U.S. 133 [1955]. In this instance the
question of bias even before the trial went far beyond a
hint! When bias
or question of bias is in issue a trial judge should recuse
herself. Judge Post’s
bias was so great that she could not bring herself to do so. This Petitioner’s cause in
this ground is well founded in Murchison id. and Liteky
v. U.S. 510
U.S. 540
[1994].
The defense
was unfairly restricted by the trial court in this trial. Such
restrictions shall not be accepted without reversal when
restriction is result of prejudice by the court. Davis v. Alaska 415 U.S. 308 [1974] and Olden v.
Kentucky 488 U.S. 277
[1988].
24
The actions of
the trial court, taken as a whole, leave little question of Judge
Dynda Post’s Prejudice.
In this same vein, Judge Post refused expert testimony at
state expense while this defendant was indigent. Ake v. Oklahoma 470 U.S. 68
[1985].
The trial court basically gutted the defense raised at
trial by Judge Post, already having shown bias; by judge post’s
disallowing questioning of prosecution witnesses [see TR page 966-
972, 980 and disallowing defense, TR pages 1286, 1287 with
Attachment “E” ] to mention but two of many instances.
While this is
an issue/error in itself, this petitioner has placed it in this
ground to reinforce the claim of bias, but the inability to
confront witnesses or the restriction of this ability as is more
to the point here must not be overlooked on its own by this
Court. It has been a
foundation of our system of justice that one must be allowed
confrontation of accusers/witnesses against her. This is as venerable as
our Constitution itself at the 6th Amendment. Our courts have long
upheld and expanded this over the years stating that when
confrontation of witnesses is unfairly restricted by the court, a
defendant is harmed to a constitutional threshold [as required to
approach this court] an error must be addressed. See Davis v. Alaska and Olden v. Kentucky id. As is clear from the
record and trial transcripts Judge Post did unfairly deny and
restrict confrontation violating the Confrontation Clause as,
“Where testimonial statements are at issue, the only indicium of
reliability sufficient to satisfy constitutional demands is
confrontation.” Crawford V. Washington, 124 S.Ct.
(U.S.
03/08/2004)
Perhaps the most
egregious error and show of bias by judge post came when trial
counsel attempted to speak of furniture in the home of the
defendants and their deceased son, a home that as stated earlier
that they had occupied for three years. Judge Post disallowed any
mention of the furniture when the prosecutor objected [See TR
pages 1286,1287, conclusion of Attachment “E”] The very foundation
of the defense was the fact that Benjamin, the deceased child,
fell from furniture causing the tragedy that itself being the
truth of the matter.
By not allowing mention of the truth Judge Dynda Post
gutted the defense at the critical point of connecting the facts
of the accident together.
25
Again, while the
trial judge has broad latitude it can never bar a proper
defense. When any
reasonable defense is presented in a criminal procedure a
defendant must be allowed to its own latitude to offer such
defense to a jury.
The failure of the trial court due to unmitigated bias to
not allow the defendant expert testimony on medical aspects and
denial of evidence, that being the normal household furniture,
when its existence must have been beyond doubt and the fact that
referencing the furniture and the defenses theory was essential to
support the defense [and the truth] that the tragic event was
caused by an accidental fall from furniture was a blatant denial
of due process. See
Chambers v. Mississippi
410 U.S. 284 [1973] and
Ake v. Oklahoma id.
Again, the
petitioner grants the fact that these issues are strong enough
error to stand on their own as grounds for relief, but
they are here
to
show continuing
bias by the trial court.
However, their own merit must not be
overlooked.
Finally, to
support her claim of trial court bias the petitioner enters claims
of bias during post conviction relief process in which judge post
failed to even address viable issues for relief [see attachment]
which will be the Post Conviction Relief.
When a defendant is faced with a trial court with such
obvious bias she can never be afforded a fair trial or Due
Process. This Court
must, for such reasons issue it’s Great
Writ.
GROUND
ELEVEN
FAILURE TO
INSTRUCT ON LESSER OFFENSE WAS
PREJUDICIAL
From the record there can be no question that a lesser
included offense of manslaughter of the 1st or
2nd degree was called for. When a reasonable jurist
takes away the misquotes [i.e.; Time frame to the hospital, and
the misquotes of various expert witnesses, etc] and the
sensationalism prejudice and bias all that is left is an
accidental tragedy.
26
When
evidence supports a lesser offense it must be offered. U.S. v. Brown 187
f3d 965 10th Circuit 2002. In the instant matter all
that was supported was second degree manslaughter by neglect at
the outside.
It denied Mrs. Schoonover Due Process not to have the jury
given the option of a lesser offense given the record of trial and
there can be no question she was prejudice by this error.
It further could be said that this failure can be tied to
the prior Ground Ten in that Judge Post’s bias can be seen as a
cause for no lesser offense being instructed sua
sponte.
The extent of harm done due to this error cannot be
calculated, as a much less severe sentence could have and most
likely would have been rendered had any guilt been
found.
GROUND
TWELVE
SENTENCE WAS
EXCESSIVE
Taken in light most favorable to the state [in re
Winship 397 U.S. 358 and Jackson v. Virginia 433 U.S.
307] the record taken as a whole, all circumstances, errors
herein, perjured statements, and misquotes of experts by the
prosecutor, bias by the trial court, and evidence of fact, it is
quite clear that any reasonable juror would find that a tragic
accident occurred.
Nothing more, nothing less. Perhaps one could find
neglect, but even this is questionable.
In
any event, given circumstances of the above outlined, Mrs.
Schoonover was over charged and over sentenced. Had the proper instruction
of manslaughter 1 or 2 been given, there is little question the
jury would have entertained such charge. Had proper instruction
been given, as it should have been sua sponte, even if not asked,
the sentence imposed, if even lesser offense could have been found
without the gross improprieties of this matter would have been
substantially less.
27
The
8th amendment to our U.S. Constitution protects a
defendant against cruel and unusual punishment. In this matter
here at bar it should be evident Gilda Marie Schoonover has been
punished far beyond what anyone should suffer for taking a
watchful eye from her child for a few short
moments.
GROUND
THIRTEEN
CUMULATIVE
ERRORS CALL FOR THE GREAT WRIT TO ISSUE
When errors as
brought forth herein, as well as other errors that were existent
but not brought due to procedural bar or not reaching a
Constitution Error are committed by the State and/or Trial Court,
the effect is so overwhelming that any attempt at a defense is
fruitless. When this
happens it is obvious no Due Process ever existed. This is the case of the
matter here at bar.
Our courts have addressed these exact situations in which
if the cumulative effect of State errors were found to be not
singularly prejudicial per-se, but in light of the entire
circumstance they would reach far beyond the threshold of denial
of Due Process to a defendant. See Donnely v.
BeChristoforo 416
U.S. 637
[1974].
The matter at
bar is beyond question meeting the effect of denial of Due Process
by cumulative effect of error and must be reversed and the Great
Writ issued.
CONCLUSION
“I haven’t a clue to what actually happened in that house.”
Words spoken by State’s Prosecutor Charles Ramsey in public to
Gerald Hilsher during a cigarette break on the south lawn of the
Mayes County Courthouse during the first trial Mrs. Schoonover had
to wrongly endure.
Strange words for a person sworn to seek the truth, not
convictions. Even
stranger when this Honorable Court looks at the misplaced zeal in
which this prosecutor took in seeking a conviction, when one looks
at the lies, innuendos, misquotes of testimony, and other wrongs
performed by the State’s Charles Ramsey.
28
From all offered herein it is clear Mr. Ramsey never sought
truth, only conviction.
The truth was and still is available and easy to find if
any logical Jurist chooses to seek it. Charles Ramsey never
sought it. Judge Dynda Post would not allow it in her Court.
Your Honors, from the very outset of this matter, lies have
permeated the proceedings.
The very affidavit used to obtain warrant for arrest was a
lie. From the
transcript furnished at pages 53-56 of the Bond Hearing it is
obvious Charles Ramsey knew, or at least he knew his investigator
knew, that the ‘under oath statement’ was a bold face lie! The court knew the arrest
was illegal due to perjury used to obtain it. Trial counsel knew that
the arrest was illegal.
For this reason alone the events following the Bail
Hearing, when all knew of the lies, were poison and must be
held for naught.
Our citizens
enjoy what could be called the envy of the world. We have been granted
protections against all that transpired in this matter. Where are all those
protections in this matter?
Our Constitution and authority of our courts over the years
have guaranteed these protections. They are what separate us
from those who either envy us or wish to destroy us because of our
freedoms. But Gilda
Marie Schoonover has not been protected by these up to this
point. Her trial
counsel throughout had failed to act in advocacy. Had counsel been an
advocate this issue here at bar would have been dismissed due to
the illegal warrant of arrest at least at bail hearing.
The
courts have not acted to preserve her rights and protections or
this matter would long ago have been dismissed. Gilda Marie would have
been freed.
Finally, even though the prosecutor must, by the nature of
his office, seek to convict offenders, he must also by our
Constitution’s protections as his very oath as prosecutor first
seek truth. He
never has, ergo, he never offered what Mrs. Schoonover should be
allowed to expect as a citizen - a fair trial – truth –
a
reliable
outcome. This has
never been the case.
Indeed, Mr. Ramsey was so unknowing of what happened in
that house, as he stated, that he took contrary possessions in the
prosecution of the co-defendants, the very action of such should
have led to judicial estoppel. See New Hampshire v. Maine 532 U.S. 742 [2001].
29
The fact is, if any genuine intentional criminal activity
has taken place here before Your Honors, it was by the State and
particularly by Charles Ramsey, that crime being deliberate
obstruction of justice from the Perjured Affidavit that he was
aware of to the continued, for lack of better words, cover
up.
Mrs. Schoonover has never hidden the truth. She has long sought
it. She has asked the
painful exhumation of her son to uncover the truth. She has prayed
our great judicial system help her seek the truth. It is time it is
discovered.
In seeking the truth Mrs. Schoonover has consistently asked
evidentiary hearings be held.
It has long been held that a Federal Habeas Petitioner is
entitled to an evidentiary hearing if facts are alleged which if
proven would entitle her to relief. Futch v. Dugger 874
F2d 1483, 11th Cir. [1989] and Townsend v. Sain
372 U.S. 293, 83 S.Ct.
745.
In this same vein, our courts have held, “Our courts must
accept all the petitioners alleged facts as true and determine
whether the petitioner has set forth valid claim.” Agan v. Dugger 835
F2d 1337, 1338, 11th Circuit
[1987].
To date this petitioner has wrongfully been denied any
evidentiary hearing to prove her allegations. She, at least, must
be granted an evidentiary hearing with counsel.
This petitioner
has long endured and suffered wrongful incarceration. This court now has the
opportunity to correct the errors and harm done this lady. Justice has not been
served. There can be
no question of that when a genuine look at the record is
given.
In a time of foreign attack upon our freedoms and
protections, we must not allow erosion of these by internal wrongs
as has happened here.
Now then, for reasons set forth at the matter at bar and in
this pleading, it is imperative as a matter of law and a matter of
Justice for this Court to order the respondents to show cause
while the allegations herein are untrue and why Mrs. Schoonover’s
conviction , Judgment & Sentence is not invalid in violation
and denial of her right to Due Process and all other protections
she should have been afforded under our Constitution of our United
States and was denied.
30
Failure to show just cause by the respondent would entitle
this petitioner to immediate release being ordered and this
Court’s writ of Habeas Corpus being issued.
The Great Writ is not to be held lightly, and there is
nothing light in the denial of so many protections this Petitioner
has suffered.
Therefore, it is prayed this court does issue its writ of
Habeas Corpus and give relief as herein prayed. That is that she
be granted immediate release or in the least have an evidentiary
hearing held to determine the truth, and in such seeking of truth,
if exhumation of the deceased is required, order such be done.
All the above is prayed and presented as a matter of law
and a matter of Justice.
It is so prayed.
Respectfully
submitted
Gilda
Marie Schoonover
Gilda Marie Schoonover
I, Gilda Marie
Schoonover, 404171 Mabel Basset Correctional facility, 29501
Kickapoo, McLoud Oklahoma, do hereby certify that on the
14th day of May, 2007, did deposit a true and correct
copy of the above pleading in the United States mail, postage
prepaid, addressed as follows:
Drew Edmondson,
Attorney General, State Capitol Building
2300 North
Lincoln Boulevard, Oklahoma City, Oklahoma 73105
I, Gilda Marie
Schoonover being first duly
sworn upon my oath state that I have read the foregoing
instrument, that is, Application for Habeas Corpus pursuant to
U.S. 2254 and state that it is true and correct to the best of my
knowledge.
