The Supreme Court

In Memory Of:

Benjamin M. Schoonover

Knights in Dirty Armour II

Chapter xx

FILED

SUPREME COURT

STATE OF OKLAHOMA

MAY 22 2006

MICHAEL S. RICHIE, CLERK

IN THE SUPREME COURT OF

THE STATE OF OKLAHOMA

Gilda Marie Schoonover ]

Petitioner ]

]

vs. ] Case No. # 103374

]

The Oklahoma Court ]

of Criminal Appeals ]

Application For The Writ of Mandamus

Comes Now the Petitioner, Gilda Marie Schoonover, Pro-se, an inmate within the Oklahoma Department of Corrections, currently housed at the Mabel Basset Correctional Center, 29501 Kickapoo Road, McLoud Oklahoma, under the direct care, custody and supervision of Millicent-Newton Embry, Warden, and moves this honourable Court to issue it’s Writ of Mandamus,

instructing and ordering the Oklahoma Court of Criminal Appeals, the Respondent, to issue it’s writ of Mandamus ordering the Respondent to accept the Appeal of a wrongful decision and order from the District Court of Mayes County, the State of Oklahoma, the honorable Dynda Post sitting of an Application for Post-Conviction Relief for reason and authority to wit:

The Petitioner is a lay person and untrained and unskilled in the ways and mechanics of the law, therefore she hereby invokes her protections of a Pro-se litigant obtained through Haines v. Kerner, 404 U.S. 519 [1972]

And Hall v. Bellmon,

As same was drafted and prepared with the help of an Inmate Legal Research Assistant.

And let it be known herein that I have authorized and appointed my husband, John E. Schoonover, as my lawful Attorney-In-Fact by the execution of my Power Of Attorney on the 24^th day of October, 2005.

History of the Matter

On the 16^th day of November, 1999, this Petitioner was charged, along with her husband, John E. Schoonover, by Information in the Mayes County District Court of Murder In The First Degree. The cause for the Warrant of Arrest, as well as the cause at Preliminary hearing to bind both Ms. Schoonover and her husband to trial by the District Court was, without question, blatantly false.

Following trial to a jury the defendants were both found guilty and the trial Court, following the Jury’s recommendation, sentenced both to life with possibility of parole, even though the State, through Charles Ramsey, [Assistant District Attorney] publicly confessed, “I haven’t a clue to what happened in that house” in the incident at bar.

An appeal was taken and both defendants were ordered re-tried. A second trial was held to a jury in Mayes County, the honorable Judge Dynda Post sitting.

John E. Schoonover was found Not Guilty of the charge at bar, but the Court wrongly allowed the charge of Accessory After The Fact to be entered after all evidence had been presented, as well as closing arguments; for this wrongful charge, the verdict of Guilty was returned, but later overturned by the Oklahoma Court of Criminal Appeals, leaving Mr. Schoonover without conviction.

The Defendant/Petitioner, Mrs. Schoonover, was found guilty of the charge of Murder in The First Degree and again sentenced to life in prison.

From this, again direct appeal was taken and said conviction and sentence was affirmed. Following affirmation the Petitioner filed her Application for Post-Conviction Relief pursuant to 22 O.S. 1080 et. Seq. which was signed and executed by John E. Schoonover, acting under law as her lawful Attorney-In-Fact, such power gained from the Power of Attorney Document executed October 24, 2005.

This Application was denied wrongfully, as the Court failed to reach the merits of the matter and the Petitioner timely filed her Notice of Intent to appeal said decision with the District court, said pleading executed by John E. Schoonover as Attorney-In-Fact, and she filed her Petition In Error with the Oklahoma Court of Criminal Appeals, hand delivered and executed by her Attorney-In-Fact, John E. Schoonover, in a timely fashion.

Following a delay in adjudication of over three months Ms. Schoonover filed a Motion for Summary Disposition, as the Attorney General had failed to respond and the Oklahoma Court of Criminal Appeals had failed to rule.

Within days, the Oklahoma Criminal Appeals declined jurisdiction for alleged improper signature, that being the signature of John E. Schoonover, the Petitioner’s Attorney-In-Fact, which was accompanied by her notarized Power Of Attorney.

Jurisdictional Statement

This Petitioner comes before this Honourable Court as the highest Court in the State of Oklahoma and as such, the Court over all judiciary of this State! As such, this Court is the proper venue to hear and order the relief herein sought, namely the Writ of Mandamus ordering the Oklahoma Court of Criminal Appeals to vacate it’s Order denying Post-Conviction Relief due to ‘improper signature’ and to accept the legal signature of John E. Schoonover acting as Attorney-In-Fact, a clear legal duty. See Oklahoma Constitution Article F sec. 4.

Further, the Oklahoma Statutes at Title 12, 2001, Sec. 952, (b) (z) references the Supreme Court’s Jurisdiction, and gives jurisdiction of:

“An order that discharges, vacates , or modifies, or refuses to vacate or modify a provisional remedy which affects the substantial rights of a party; or grants, refuses, vacates, modifies or refuses to vacate or modify an injunction; grants or refuses a new trial; or vacates or refuses to vacate a final judgment.”

Therefore, this Court has jurisdiction to grant relief herein sought.

Argument and Authority

For one to qualify for the Writ of Mandamus per rules of the Court, a Petitioner must show the following:

1. She has a clear right to relief sought.

2. The Respondent has failed to perform a

plain legal duty not involving an exercise in

discretion, and;

3. The adequacy of Mandamus, and the

inadequacy of other relief.

See Woolen v. Coffman, 676 P.2d 1375, 1377 [Okl. Cr. 1984]

Mandamus has further been ruled an appropriate vehicle to ensure due process, a protection that without this Court’s Order, would be denied this Petitioner.

See: Waldron v. Evans, 861 P.2d 311, 313,[Okl. Cr. 1993]

In the instant matter at bar it is clear all requirements are met. The Oklahoma Court of Criminal Appeals wrongly denied acceptance of the Petitioner’s Application for signature. The Application was lawfully signed and executed by the Petitioner, through John E. Schoonover, her lawful Attorney-In-Fact, authorized through her lawfully executed Power Of Attorney.

The Oklahoma Statutes at Title 58, Chapter 17A cites the Uniform Power of Attorney Act, sections 1072.1 and 1072.2 being the applicable authority in this matter.

Further defining Power Of Attorney the Petitioner refers the Court to In Re Matter of Rolater’s Estate, 542 P.2d 219 [Okl. App.. 1975]:

“Power of Attorney refers to instrument authorizing another to act as one’s agent or attorney-in-fact, as distinguished from attorney at law.”

In Re Matter of Rolater’s Estate, Id, further states:

“Instrument Creating Power of Attorney will be strictly construed.”

Under authority of all the above it is without question that John E. Schoonover, acting as agent or Attorney In Fact, authorized by properly executed Power of Attorney, had authority to legally sign any and all legal documents, including the Application for Post-Conviction relief that is the matter here at bar, and the Oklahoma Court of Criminal Appeals was obligated to accept Mr. Schoonover’s signature, acting as agent or Attorney In Fact, for this Petitioner. To not accept the valid Power of Attorney and signature by the Oklahoma Court of Criminal Appeals would be stating that the Oklahoma Court of Criminal Appeals is above the law. Others are authorized to accept as valid such transactions.

Surely the Oklahoma Court of Criminal Appeals is not above the law. For further argument of this prayer the Petitioner refers this Court to her unanswered prayer to “Set Aside and Vacate,” attached. {Exhibit A}

In closing argument concerning the validity of a Power of Attorney and the signature of one so designated Mrs. Schoonover need go no farther than Title 60, Okl. Statute at sec. 299.1

“Under Common Law”

“The common law of powers is hereby declared to be the law of this state, except as modified by statute.”

The common law of powers makes clear that the Post-Conviction execution that in the matter here at bar was properly executed, and no statute has modified same.

From the above it is clear that one, the petitioner validly executed her Post-Conviction Application through her Attorney In Fact [not next of friend] and is therefore entitled to relief herein sought.

It is further clear that the Oklahoma Court of Criminal Appeals had no discretion in accepting the Power of Attorney and signature of Mrs. Schoonover’s Attorney In Fact.

Draper v. State, 621 P.2d 1142 [Okl. App. 1980] speaks to this:

“Mandamus does not lie to control an action that allows discretion, unless discretion has been abused.”

And further:

“A difference of opinion is not an abuse of discretion. Where there is room for two opinions, an action is not arbitrary or capricious when it is executed honestly upon due consideration even though it may be believed that an erroneous conclusion has been reached.”

There is, first, no discretion of the courts, in this case the Oklahoma Court of Criminal Appeals, in accepting statutory authority beyond such statutes constitutionality. In this case no Constitutional bars, either state or federal, exist, therefore no discretion of the Oklahoma Court of Criminal Appeals existed to not accept a signature allowed by statute. No difference of opinion exists when a statute is so plain.

Simply put, Oklahoma Court of Criminal appeals, the Respondent, failed to perform a plain legal duty and accept the Application as legally signed, executed, and presented.

Finally, there can be no question that Mandamus is the only remedy, all other avenues having been exhausted.

Conclusion and Prayer

The Petitioner has long sought a fair hearing on her matter and on it’s merits. She has diligently sought to give birth to Justice, but there have been undertakers in the delivery room throughout this ordeal.

Herein she has shown where she has a clear right to the Oklahoma Court of Criminal Appeal’s acceptance of her Attorney In Fact’s execution of her post-Conviction Relief in her behalf. She has shown the failure of the Oklahoma Court of Criminal Appeals in accepting such. She has displayed the fact that Mandamus is the only remedy in the search for Justice.

Therefore, premises considered, it is so prayed this Honourable Court issue it’s Writ of Mandamus against the Respondent to vacate it’s order of April 10, 2006 and accept as genuine and lawful the Power Of Attorney, Attorney in Fact execution and signature.

It is so prayed.

Respectfully submitted,

John Schoonover for

Gilda Marie Schoonover 404171

C1A/118 29501 Kickapoo

McLoud Oklahoma 74851

I certify that an exact copy has been hand delivered to the office of the Attorney General, Drew Edmondson.

Attachment 1

Affidavit signed by Gilda Marie Schoonover Notarized

May 5, 2006 / Power Of Attorney Notarized October 24.

Attachment 2

Petitioner’s “Objection To Dismissal” signed by

Gilda Marie Schoonover, Notarized 13 April, 2006 that was not accepted by the Court Clerk.

Attachment 3

Copy of denial by OCCA.

http://www.knightsindirtyarmour.com/

This Motion was dismissed for the most frivolous of reasons as outlined following our MOTION TO RECONSIDER, that follows:

{June 26, 2006}