JUNE
14, 2007
IN THE UNITED STATES
DISTRICT COURT FOR THE
NORTHERN DISTRICT OF
OKLAHOMA
GILDA MARIE
SCHOONOVER, ]
]
Petitioner
]
]
v.
] Case No.
07-CV-0283-CVE-FHM
]
MILLICENT
NEWTON-EMBRY,
]
Warden,
]
]
Respondent
]
MOTION TO DISMISS
PETITION FOR HABEAS CORPUS
AS TIME BARRED BY THE
STATUTE OF LIMITATIONS
Comes now the Respondent, by and through the Attorney
General of the State of Oklahoma and respectfully asks
that the instant petition for Habeas Corpus be dismissed as it is
untimely filed pursuant to 28 U.S.C.2244(d). Respondent has filed a
brief in support of this Motion which is being filed
simultaneously herewith which more fully explains and supports
Respondent’s position.
Wherefore, for the reasons contained within Respondent’s
brief in support, Respondent respectfully requests that this Court
dismiss the instant Petition as it is barred by the statute of
limitations.
Signed by Theodore M. Peeper,
Assistant Attorney General
The dates of all the
motions are listed including “October 25, 2006: The
District Court of Mayes County denied the petitioner’s motion to
exhume the body of the victim. See, Exhibit 5, Court
Minute.”
A trip to Mayes
County
produced the filed Court Minute document that was not signed by
any officer of the court.
The Minute was for the assistant district attorney, Charles
Ramsey, to write out and file the order within ten days.
This “Order” was never
written or filed and certainly could not be mailed; there is no
notice of mailing even of the “Court Minute” to the defendant.
Thus it stands clear that
one could not appeal a decision that is not written and filed with
proper notice given the defendant. It is still pending.
The State claims in their
brief that “The Petitioner did not appeal the denial of this
motion to the OCCA.”
The State cites Campbell v. State, 500 P.2d 303
(1972) as justification to replace as authority to replace “all
common law and statutory methods of challenging a conviction or
sentence.”
This is the only argument
the State uses to resist ruling on the Habeas by the Northern
District of Oklahoma.
The State did not even
submit an argument against Gilda Marie Schoonover’s claim of
Actual and Factual Innocence! And THAT claim tolls any
statute of limitation for filing per House v. Bell, a 2006
S.Ct. case.
J.S. for Gilda Marie Schoonover
The
complete rebuttal as filed follows:
(filed
25 June, 2007)
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
]
]
Respondent
]
TRAVERSE TO RESPONDENTS
MOTION TO DISMISS
AS
TIME BARRED BY THE STATUTE OF
LIMITATIONS
Comes now the Petitioner
Gilda Marie Schoonover appearing herein pro se currently being an
inmate Mabel Basset Correctional Facility at 29501 Kickapoo,
McLoud Oklahoma and
respectfully submits to this Honorable Court her traverse to the
respondents motion to dismiss as being false, inaccurate and an
obstacle to Justice for reasons and authority to wit: all being
filed under protection of Haynes v. Kerner 404 U.S. 519.
ARGUMENT AND
AUTHORITY
The respondent wrongly
claims the petitioner has defaulted by procedural bar due to time
restraints as contained in the anti terrorism and effective death
penalty act (AEDPA), 20 U.S.C. sec. 244d, 1.
The respondent wrongly
relies on misstated time elapses and misplaced reliance on their
claim of improper filing of application for writ of mandamus may
26, 2006.
First, relying on
Campbell v. State, 500 P2d 303 [1972) the respondents state
post conviction relief , 22 O.S. sec. 1080 et seq. replaces all
other collateral attack.
The fact is, post conviction relief does not do away with,
nor completely replaces Habeas Corpus, prohibition, mandamus or
other means of collateral attack. See Lamb v. State
482 F2d 615, 10th Circuit [1971]. Further, the Oklahoma
Supreme Court DID have
jurisdiction to rule on contract law, which was the sole
proposition entered with it, that being the legality of a properly
executed, notarized/verified power of attorney being a contract,
and it has long been held that a Power of attorney is a binding
contract, and the OCCA disallowed the signature that this
petitioner gave power of attorney to sign. There was no question of
criminal law presented to the Oklahoma Supreme Court.
In any event, this
petitioner has had, without interruption, collateral attack in one
form or another before the state’s courts from September 30 2005
until the present, the last filing being a good faith search for
truth by Motion to Exhume The Truth filed July 3, 2006, and to
date this motion has not been ordered denied. (see attachment A). For this reason alone the
Petitioner’s time to file the instant application was tolled on
Jul 3 2006 with more than 75 days remaining to file instant
application.
The simple fact is that
this Petitioner is Actually and Factually innocent and has
diligently, and in a timely manner, sought both relief of her
sentence and the truth in this matter and has not “sat on her
hands.” She has not
defaulted on her time under AEDPA to bring this instant
petition.
Assuming arguendo that
even if for some reason this Honorable Court would agree with
respondent (although the petitioner has clearly demonstrated the
errors in the respondent’s claims) and find some problem with the
time limits of this pleading, it is clear she has not run from the
truth but has sought it and she is an innocent person, and as an
innocent person must be heard on merits as both a matter of law
and as a matter of Justice.
When our courts cease to seek the truth we can no longer be
called a nation under rule of law. It is for this
reason our Legislatures, Congress, and our courts have given clear
direction to overcome procedural bars of any kind when an innocent
seeks relief through Truth.
In the instant matter
here at bar the petitioner has claimed to be, and is, actually and
factually innocent of the charge for which she was convicted and
as such must be given that opportunity to vindicate
herself.
As stated in her original
application, Mrs. Schoonover again lists a long litany of law that
would pierce any procedural bar, whether it be res judicata
{should new evidence be found} or other bar, in this matter, the
time bar improperly raised by the respondent. See House v. Bell,
126 S.Ct. 2064 (decided June 12 2006), Schulp v. Delo, 513
U.S. 298, Sawyer v. Whitley 505 U.S. 333, Bousley v.
U.S. 523 U.S. 614 , McClesky v. Zant 499 U.S. 467 and
Kuhlmann v. Wilson 477 U.S. 436.
Kuhlmann laid the necessity to
pierce the procedural bar, and although the Kuhlmann court
did not grant relief, it did hear on merit the constitutional
claims because it was shown that if Kuhlmann’s claims could
be supported there would have occurred a fundamental miscarriage
of justice. The
Kuhlmann test has been used now for more than two decades,
and was used by the Supreme Court to overturn the appellate courts
denial of jurisdiction due to procedural bar in Schulp v.
Delo, supra, and ordered Schulp to be heard on merit
that there was “a good probability the petitioner can support his
claim.”
Again, as stated in the
original petition, the Bousley court, 533 U.S. 614, made
clear our system of justice and our courts hold one must be given
all Due Process and all opportunity to show their innocence. In Bousley the
court stated, leaving no question where it stood, that conviction
and sentencing of one actually innocent of a crime is “repugnant
to our very system of values”. Mrs. Schoonover is an
innocent. She has
presented strong evidence of her innocence, and continues to pray
the various courts that she has petitioned to seek the truth of
her innocence by such action as the Motion to Exhume the Truth
filed in Mayes County Dist Court, still unanswered as to cause
{only an unsigned unmailed minute with order to follow has issued,
and from this no cause or order to deny being issued, she may not
appeal nothing to the highest State Court}.
More important to this
cause of action is the clear fact that she has shown the
probability of innocence in a strong enough manner to have her
cause overcome any procedural bar, and as such has met the
requirements of the Kuhlmann v. Wilson, Supra , and
Schulp v. Delo, Supra.
CONCLUSION
Mrs. Schoonover is an
innocent person.
Bousley v. U.S. 523 U.S. 614 is quite clear in the
Courts’ feelings of an innocent being incarcerated and not being
allowed every opportunity at vindication and truth--- “repugnant to our very
system of values.”
She is not out of time by
statute of limitation of AEDPA . She clearly has pending
collateral review in search of truth and relief in her Motion to Exhume The
Truth, and as such has tolled the time for submitting this
instant petition since July 3rd 2006 awaiting formal denial of the
Mayes County District Court.
In any event, the statute
of limitation or any other procedural bar must be seen as moot
when the abundance of the evidence of her innocence and the
overwhelming amount of errors of a constitutional nature that
precluded a fair trial with any reliable outcome or any pretence
of due process. She
has well demonstrated her right to overcome any procedural bar by
clear showing of her innocence, assuming there should be
seen any reason to hold that she, a pro-se litigant under the
protections of Haynes v. Kerner 404 U.S. 519 should be
found beyond time.
Justice requires one who
has shown such probability of innocence be given wide birth to
show such, and aren’t we taught that justice is the handmaiden to
the law.
The petitioner therefore
prays the respondent’s motion to dismiss be denied as a matter of
law and as a matter of justice for reasons herein. It is so
prayed.
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
I, Gilda
Marie Schoonover, 404171 Mabel Basset Correctional facility, 29501
Kickapoo, McLoud Oklahoma, do hereby certify that on the
_25_ day of June, 2007, did deposit a true and correct copy
of the above pleading in the United States mail, postage prepaid,
addressed as follows:
Millicent
Newton Embry,
Warden
Mabel
Bassett Correctional Facility
29501
Kickapoo McLoud Okla.
74851
Theodore M.
Peeper
Assistant
Attorney General
313 N.E.
21st Street
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 Rebuttal to Traverse and state that it is true and
correct to the best of my knowledge.
____________________________
Gilda Marie
Schoonover
Subscribed and Sworn
before me, a Notary Public within and for the State of Oklahoma
On this _22_day of
June, 2007
____________________
My Commission
Expires
___________________________
_________________
Notary Public
Commission
Number
{signed and notarized}
