Knights
in Dirty Armour II
Chapter
XIII
THE
APPEAL
****** Filed With The
Court Clerk January 3, 2006 ******
IN THE
COURT OF CRIMINAL APPEALS
STATE
OF OKLAHOMA
Gilda Marie
Schoonover
]
Petitioner
]
]
]
Case No. CF 99-00271-B
]
The State Of Oklahoma
]
Respondent
]
An Appeal from the
District Court of Mayes County,
Judge Dynda Post, of an
Adverse Ruling
Of an Application for
Post Conviction Relief
PETITION IN
ERROR
BRIEF IN
SUPPORT
Comes now Gilda Marie
Schoonover, Petitioner, PRO-SE,
an inmate within the
Department of Oklahoma Corrections currently improperly and
illegally incarcerated at Mabel Basset Correctional Center, 29501
Kickapoo Road, McLoud Oklahoma, under the direct care custody of
Millicent Newton Embry, Warden, and offers this Honourable Court
her Petition In Error
from the
District Court of Mayes County denial of her application for
Post Conviction Relief with her Brief In Support,
and moves this Honourable Court to grant relief prayed herein
, for reason and
authority to wit:
1
Petition in
error
1. The Petitioner filed for
her instant application for Post Conviction Relief in the
District Court of Mayes County on September 30 2005,
pursuant to the rules of the court and Okla Statute Title 22 sec. section 1080
et seq. , Kevin acting as her counsel.
2. Petitioner filed a
Motion to Supplement and Publish with her Pro-se
application for Post Conviction Relief with the Mayes
County District Court, with exhibits, on October 14 2005, again
pursuant to the rules of the Court.
3. The District Court, in
error, overruled the instant application for Post Conviction
Relief by court minute on November 14, 2005, stating findings of
facts and conclusion of law “should be prepared by the District
Attorney within 15 days.” (see attachment 1)
This, in and of itself, presents error in that the
Court prepares its findings, not one of the parties to an
adversarial proceeding; if this not be the case, then an
adversarial proceeding never occurred. The state, being a party,
and the court, being supposedly unbiased, appeared on one side,
the petitioner being the moving party appearing against the Court
being coached by the State on the other side.
4. Not wishing to be tricked
into missing a filing deadline, the Petitioner timely files her
notice of intent to appeal on Nov 18 2005.
5. The Court, Judge Dynda
Post presiding, issued its order denying Petitioner’s Application
for Post Conviction Relief after much delay on Dec 2, 2005, fully
twenty three [23]days from the court minute and eight [8] days
after it was to be issued.
6. Petitioner refilled and
appended her notice of intent to appeal and designation of record
for transmittal under the Rules of the Court of the Court of
Criminal Appeals, rules 5.2 (c) (1), and 5.2 (c) (6).
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7. The District Court was in
error in not addressing the fundamental issue at bar, and by
failing to address the fundamental miscarriage of justice of the
actual and factual innocence of this Petitioner, and further
showed the bias of the Court as has been demonstrated throughout
the proceedings by working in lock-step with the State in allowing
the District Attorney to write the Order Denying in form and
finding of facts and conclusion of law. [see attachment
1]
8. The petitioner was
further wronged by the courts ruling without a valid response
being filed by the State from which the Petitioner could traverse
and object as to matters of fact in law.
9. The Petitioner must be
ordered released from the custody of the Oklahoma Department of
Corrections, Judgment and Sentence being ruled void, or in the
alternative, this court must order the matter remanded to the
District Court for an impartial Evidentiary Hearing by an
impartial magistrate, with counsel being appointed her by this
Court.
The law demands no more than a fair trial with a reliable
verdict being afforded a defendant. It also demands no
less! In the
instant matter, it is clear from the perjured affidavit of George
Klatt, whom the State chose to not have in court during trial,
despite his being the leading investigator and affiant to warrant
of arrest, to the court induced ineffective assistance of counsel,
to the finality of Judge Post’s collusion with the State in
deciding, writing, and ordering the denial of this Application at
Bar, that this Defendant has never been afforded a fair trial with
a reliable verdict and outcome.
This Petitioner is actually and factually innocent of the
charge at bar. A
tragic accident took place. The State proved nothing more as
nothing more took place.
The District Court erred at trial, and the errors at trial
have been exacerbated by the wrongful denial of Post Conviction
Relief. To further
deny this Petitioner would further add to the fundamental
miscarriage of Justice and the wrongful suffering she has already
been subjected to.
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It is therefore prayed that relief herein prayed, the
reversal of Judgment and sentence be ordered by this Court and
Petitioner be ordered released from custody, or as an alternative
as a matter of Justice and to assure the veracity and integrity of
the law and those sworn to uphold and administer it, an
Evidentiary Hearing be ordered. It is so
prayed,
(signed) Gilda
Marie Schoonover, Pro-se.
BRIEF IN
SUPPORT
Comes now the Petitioner,
Gilda Marie Schoonover, PRO-SE, and offers this brief in support
of her appeal of ORDER DENYING POST CONVICTION RELIEF FROM THE
DISTRICT COURT OF MAYES COUNTY, THE HONORABLE JUDGE DYNDA POST
PRESIDING, order being filed in the District Court on December 2,
2005.
This Petitioner is a lay
person and as such is untrained, unskilled and unfamiliar with the
ways and mechanics of the law and therefore hereby invokes the
protections and latitudes provided under Haynes V. Kerner 404
U.S.
519.
This Petitioner has
designated the record as described in her Notice of Intent to
Appeal and designation of record that is part of this filing,
said record being transmitted by the clerk of the District Court
as a matter of the rules of this Court.
This Petitioner has
further supplemented the said record and has provided the
adversary party, that being the Attorney General of Oklahoma ,
with copies of all supplements given this honourable
Court.
This Petitioner as well
as the State of Oklahoma has documented the
facts and history of the matter at bar and in general, these are
not in dispute. There
are exceptions as have been well noted in the pleadings from
trial, to direct appeal, to the Post Conviction Relief application
that is the genesis of the matter here at bar. These will be further
elucidated
herein.
4
The Petitioner also
herein disputes the District Court claim of procedural bar of the
rules by res judicata and not raised waived, and again will
illuminate herein:
1.
The Dist
Court was obligated to answer the
merits of the original application and the supp application filed
in behalf of and by this petitioner.
The matter of actual
innocence and questions concerning such can never be
barred when it rises to
the point of fundamental miscarriage of justice. The
Supreme Court of this United States made clear the
threshold of an actual innocence claim by strict definition in
Bousley v. U.S. 523 U.S. 614, (1998)
stating as follows: (“Actual innocence means factual
innocence, not mere legal insufficiency … the
government is not limited to existing record and may present admissible evidence
of a petitioners plea
colloquy”) or in the case at bar, the
trial.
The Petitioner well meets
this definition, and further claims as the defendant, she also may
bring evidence
that may be substantiated from outside the record. The plain facts are that,
first, the petitioner is innocent, and
second it is clear that under the holding
of Jackson v. Virginia 443 U.S. 307, 99 S. Ct. 2781
and In Re. Winship, 90 Sct. 1068, 397 U.S. 358 (U. S., N Y
1970], the State of Oklahoma, looking in light most favourable
to the State, failed to prove any crime at all took
place. Why? Because
no crime happened! A tragic accident took place. A moment’s
negligence, perhaps, but no crime.
In Bowsley, supra,
the Court held that the conviction and sentencing of one
actually innocent of a crime is
repugnant to our very system of values.
The Courts have a long
history of holding conviction of an innocent is a fundamental
miscarriage of justice, and must be addressed as such and can never be held
as harmless error, or procedurally barred.
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Our Courts have held that
a Petitioner can satisfy “fundamental miscarriage of Justice when
he makes a colourable showing of factual innocence.” U.S. v.
McDonald 966 F2d. 854 [4th circuit 1992] This threshold, it must be
admitted by the most conservative
view, was more than passed by the ear witness
testimony of Nora Stanart and her contemporary account of the
accident. That is,
that when the
accident took place, this petitioner was in another room of the
home talking on the telephone with Nora Stanart, thus unable to
inflict any injury to her
son, Benjamin
Schoonover.
The petitioner informs
this court that a claim of actual innocence is presented herein
[see Supplemental Brief
filed October 5, 2005] must overcome any and all procedural
bars that the state has raised in District
Court, and they wish to raise in this court, and the claims
presented herein must be heard on merits and answered as such with
no procedural defaults:
See McDonald
supra; Bowsley, supra; Murray v carrier 477
U.S. 478
[1986]; Dyer v. U.S. 23 F3d 1421
[8th circuit 1994]; U.S. v. Dale
140 F3d 1054 [D.C Circuit 1998]; and McCluskey v. Vant,
499 U.S. 467 [1991].
This petitioner has
presented numerous evidence of her innocence per
McDonald, Bowsley, and others, and
is entitled to be judged on merit.
In failing to meet and/or
reach the merits of the issues raised in both the initial
application for Post Conviction Relief filed in Mayes County
District Court on Sep 30 2005 and the Supplemental Brief published
and filed in the Mayes County District Court on Oct 14 2005,
pursuant to 22 O.S. 1080 et seq., the District Court erred and
this petitioner was denied Due Process as required through the
5th and 14th Amendments to our U.S.
Constitution.
This Court must reverse
the ruling of the District Court and, on its own, rule on the
merits presented as a matter of Justice and as a matter of
Law. In the
alternative, the Court must remand and order Evidentiary
Hearing as prayed.
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2.
While it has
long been held by this Court that Post Conviction Relief is not,
and has never been intended as a second appeal [Fox v.
State 880 P2d 383 [Ok. Cr. 1994], and as a rule, this court
does not consider issues raised on direct appeal [res judicata],
or issues that could have been raised but were not [not raised
waived], it has been strongly ruled by this Court that when appellate counsel was
ineffective in raising, or
did not raise a warranted issue, the court may, and as
a matter of Justice should reconsider. Hooks v. State 902 P2d
1120 Ok. Cr. 1995.
The Hooks court further established guidelines to such
hearing stating that a Petitioner “must establish direct appeal
counsel failed
to raise, or was ineffective in raising, issues warranting
reversal, modification of sentence, or remand for resentencing or
evidentiary hearing.”
The District Court, in its denial of Post
Conviction
Relief at page 2 , itself cites Thomas v. State 888
P2d
522 Ok Cr 1994, stating, “according, claims that
could
have been raised on direct appeal but were not are generally waived”. Even this Petitioner has
no fault with the general action. What she has shown herein
is the
exception to the general rule. That is to say, in citing
Woodruff v. State 910 P2d 348, “The exception to the rule
that application of the uniform post conviction procedure act is
limited to claims which could have been raised on direct appeal
exists when the court finds grounds for relief were sufficient and
not asserted , or were raised inadequately in either direct
appeal or previous Post Conviction Relief applications.]
In the instant matter the
Woodruff
Court spoke to two issues that are
Germaine to this matter. The first being lack of assertions on
direct appeal; the second, the validity of the supplemental Brief
that was never addressed by Judge Post and the District
Court.
In the first instance, to
meet the standard of Hooks v. State Supra the petitioner
enters her attachment “D”, in which
appellate counsel Catrina Conrad Legler writes to the petitioner
that an issue to be later pursued was the State and Statute Induced
Ineffective Assistance of Appellate counsel, that being her
inability as OIDS
counsel to raise issues such as ineffective assistance of
trial counsel.
7
This alone meets the Hooks and Woodruff
thresholds.
In the second matter the
Woodruff
Court, as well as Hooks speaks
to inadequately raised.
In the instant
matter, the initial application for PCR was inadequate
in that it failed to raise
clear and present issues, specifically the major fact of the entire case , that
is that Mrs. Schoonover is actually innocent. Another major issue was
the prejudice and abuse of discretion shown by the trial court as
pointed to in the record [Supplemental Brief], and other attached
records transmitted by the dist court clerk.
It should be noted here
also, that Ms Conrad Legler’s mention of State and Statute Induced
Ineffectiveness
also is the over riding issue of trial counsels
ineffectiveness. That
is to say, while not statually induced, or even state induced,
trial counsel was Judicially rendered ineffective by the trial
courts erroneous rulings, this being on the record when trial
counsel, not being allowed certain cross examination, and at other
times not being allowed to offer a defense (furniture in the home)
or introduce evidence [ the history of years of solid citizenship
and child care , see U. S. v. Pujana, 549 F2d 24
which clearly states that character evidence is admissible
principally to show that, because of his or her {child care
experience and} good reputation, defendant is less likely to have
committed the charged crime and in cases where a defendant does,
or does not testify
THIS May be the case in helping a jury in determining guilt or
innocence] stated for the record that the Court was not allowing him to present a
valid defense.
The petitioner has, by
the record transmitted and other attachments, shown a bias of the
Trial Court and its predisposition in its belief of a murder having taken place,
not an accident as truly happened. [see exhibit
“B”] The petitioner has noted to the court in the
Supplemental Brief that the court chose to ignore for obvious reason that
there was bias in the trial courts relationship to a potential
witness, Mrs. Judy Girdner, who was a prime perjurer in the
affidavit for the warrant of arrest. [see attachment “C”,
item
“M”].
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This bias, projected at
pre-trial, trial and beyond by Judge Post is and was a clear
indication of her
inability to be impartial in her ruling on this
Petitioner’s application for Post Conviction Relief and why
the issues raised in both initial pleading and supplemental brief
were denied or ignored.
For this reason this
Court must see through the sham of Justice by the District
Court of Mayes County. There has never been an
objective search for the truth in this matter, only a search for a
conviction.
3. In the one
issue addressed by the District Court Judge Post, that is the
Ineffective Assistance of Counsel issue as raised in the original
application of September 30,
2005 and expanded in the Supplemental Brief of October 14, 2005,
the Court erred in its finding both as a matter of law and as a
matter of justice.
Judge post states that
the Ineffective Assistance of Counsel could have been raised on
direct appeal and was not, for reasons unknown to her court. [see denial at
page two]. She
further states “therefore, any questions
of the effectiveness of trial counsel has been waived.”
Simply put, this ruling
is in error as a matter of law. The 10th Circuit
set a clear standard for such action,
and that standard flies in the face of Judge Post’s
ruling, or more accurately, as she herself put it, the District
Attorney’s ruling for she herself says that the District Attorney
will write the order and finding of facts and conclusion of law
[see attachment 1].
In English v. Cody 146 F3d. 1257 10 cir 1998 the
court was very explicit in stating, “in order for a criminal
defendant to adequately vindicate his 6th Amendment
right to effective assistance of counsel, he must be allowed to
obtain an objective assessment of trial counsels performance and
must be allowed to
adequately develop the factual basis for any claim of
ineffectiveness.”
Such objective view of
performance of counsel must attach to appellate counsel review as
well as trial counsel.
The Supreme Court of our
U.S. disagreed with Judge Post’s analysis also. In Kimmelman v.
Morrison, 106 St.Ct.
2574, 1986, the High Court made clear its
finding:
9
“Because collateral review
will frequently be the only means through which an accused can
effectuate the right to counsel, restricting the litigation of
some 6th Amendments to trial and direct appeal would
seriously interfere with an accused’s right to affective
representation. A
layman will ordinarily be unable to
recognize counsel’s errors and to evaluate counsel’s
professional performance.
Citing from Powell v. Alabama, 287 U.S. 69, 53 Sct.
64. Further, the Kimmelman court stated “indeed, an accused
will often not realize that he has a meritorious ineffectiveness
claim until he brings collateral review proceedings.”
The Kimmelman
Court went on to
state:
“the 6th
Amendment mandates that the state bear the risk of constitutionally deficient
assistance of counsel.”
Drawing on Murray v. Carrier, Supp. Citing “where a
procedural default is the result of the ineffective assistance of
counsel the 6th Amendment itself requires that
responsibility for the default be imputed to the
State.”
In the instant matter it
is clear that appellant’s counsel’s failure to raise ineffective
trial counsel produced the procedural default. This, by her belief, was
state and statutorally
induced [see
attachment “D”]. It
makes little difference if the default of failure to raise was
induced or not. She
was induced, which is improper, or she believed she was, which is
incompetent.
Kimmelman v.
Morrison
Supra erases all question of the above by stating “As
Strickland teaches the right to effective assistance of
counsel insures that defendants have a fair opportunity to
challenge the charges against them. A defendant has a valid
ineffective claim whenever he has been denied that opportunity,
regardless of the law on which counsel’s error is
based.”
This petitioner herein,
and in the original filing of Sep 30 2005 and October 14 2005 has
maintained that the Standard of Strickland V. Washington 466
u.s. 668, 104 Sct.
2052, 80 L.E.d. 2d 674 1984, which has long been held the
standard of ineffectiveness has been met in which both counsel’s
incompetence,
10
either actual or court
induced or state induced, and the prejudice caused is clear and
present, and that but for counsel’s ineffectiveness the outcome
would have been drastically different. The method of
ineffectiveness, either actual or induced, under Kimmelman
supra, is immaterial.
The petitioner was harmed and prejudiced and no fair and
reliable outcome possible, and as to appellate ineffectiveness, Ms
Conrad’s letter speaks for itself.
As to Judge Post’s or the
District Attorney’s claim of default, the petitioner will return
to English v. Cody Supra.
And quoting from
English:
“Because the effective
assistance of counsel lies at the very foundation of criminal
justice, this court has been particularly vigilant in scrutinizing
the adequacy of State Rules of Procedural Default which have the
effect of barring review claims of effective assistance of
counsel.”
Citing from Jackson v. Shank, 143
F3d 1313, 1318-19 10th cir, 1998; and Osborn v.
Shullinger 861 F2d. 612, 622-23 10th Cir.
1988.
This petitioner has
clearly shown this court by fact and authority the district
Court’s error concerning denial of ineffective assistance claim
and by documents of appellate ineffectiveness denial being in
error. The District
Court must be reversed and this defendant be freed for a crime
that never occurred.
CONCLUSION
Justice has hidden
itself.
No crime at all
occurred. A
tragic accident occurred.
A lady was punished for a moment’s negligence by the loss
of her son. She is
now being punished for no crime, but for a desire for conviction
rather than truth by Mr. Ramsey, the assistant District
Attorney, And Judge
Dynda Post.
In Williamson v.
Reynolds 904 F Supp. 1529 E.D. Oklahoma 1995, the
honorable Frank
Saey, in ruling on a
habeas action concerning ineffective counsel and multiple other
issues , as is the case of the matter at bar, says:
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“God help us, if ever in
this great country we turn our heads while people who have not had
a fair trial are executed.”
That
almost happened in this case.
* * *
* * * * * *
No, your Honours, Justice
is not visible in this matter. Aren’t we taught that Justice is
the Handmaiden of Law?
The fact is clear- Justice has never been sought, the truth
has been kept well hidden by Dirty Knights while an innocent
lingers her life away. While no death penalty is in this matter,
there can be no question that the defendant in this case has been
sentenced to death without a fair trial. To paraphrase Judge Saey,
please don’t turn your heads.
The truth is
available. It always
has been. Mr. Klatt perverted it. Mr. Ramsey never sought
it.
Please don’t turn your heads. For the Law to work as we
are taught from grade school on that it does, truth must be
sought, and Justice must be brought into our courts at every level. To do any less will create
a prairie wind of disrespect for Law and our country will only
reap the whirlwind.
Prayer
In closing, this
petitioner has made clear her innocence and the District Court’s
errors in blocking her attempt for Justice by facts and
authority.
Therefore, premises
considered, she now prays this Court to vacate the Judgment and
Sentence based on the facts presented herein and in the record, or
in the alternative, to remand for an Evidentiary Hearing of her
issues in a fair and impartial venue. Find for her, find for
justice, find for our future respect for the Law. Your progeny will be glad
you did.
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