December 2008
1. On December 1, 2008, I filed five documents with the District Court in reply to the State's response last month (see Case Status on November 2008): a Motion To Amend Ground I in Habeas Petition [29], a Motion To Amend Ground V in Habeas Petition [30], a Supplemental Memorandum of Law [31], an Additional Argument For Appointment of Counsel [32], and a Reply to Answer-Response and Amended Answer-Response [33].
2. The Motion to Amend Ground I was filed out of necessity to cure the flawed Ground I drafted by terminated counsel, Rodney Zell. The claim as stated was not exhausted as the State claimed. Now, if the Motion to Amend this ground is granted, the State must address the fundamental issues of this ground on its merits, which means that State and Federal Constitutional grounds regarding the right to confrontation and right to due process must be ruled upon.
The Amended Ground I has been exhausted by bringing it at trial, in the Motion for New Trial and to the Court of Appeals. The State was given a full and fair opportunity to rule on State and Federal Constitutional claims but declined tacitly to do so, leaving the District Court with the opportunity and obligation to do so.
3. The Motion To Amend Ground V was also filed because he merits of the ground could not be heard as originally drafted. The State never addressed the merits of the claim but brought a defense that Ground V did not state a claim for relief. The amended ground, if granted, cures the unartful way the ground was originally presented; it has not altered the issue and merits of the ground but has now placed the issue before the District Court in a way the merits can be heard and decided. It will now allow the State to argue the merits of the issue, the unconstitutional application of Strickland in determining my 6th amendment claim of ineffective assistance of counsel.
4. I filed the Supplemental Memorandum of Law [31] to provide the District Court with additional arguments in support of my claim that the State of Georgia refuses to apply the cumulative error doctrine in light of federal constitutional protections of due process, under the 5th and 14th Amendments. Georgia is trying to say that although there might be more than one error of ineffective assistance of counsel, each error must stand or fall upon its own merits but fails to consider if all the errors made by the court, counsel, prosecutor or from others has caused so much prejudice to a defendant that the trial was fundamentally unfair.
I am asking the District Court to review the way that Georgia is applying the United States Supreme Court Law in Strickland in determining a defendants 6th Amendment claim of ineffective assistance of counsel.
5. The reply To Answer - Response And Amended - Answer - Response [33] was filed with the District Court to address the claims presented by the State last month concerning each of the grounds that I have raised. In this document I acknowledge to the Court that Grounds I and V as previously presented would not have allowed it to hear the merits of each ground. I referred the Court to the two motions filed along with this document to amend each ground (see above items 2 and 3).
As to Grounds II, III and IV, the State claims that they are new and therefore procedurally defaulted but I am trying to tell the District Court that they are not. I am giving the Court a detailed explanation that each one of those grounds have been previously presented and are exhausted.
Finally, as to Ground VI, he State is telling the Court that this ground has been reviewed and already decided adversely by the Georgia Courts so the District Court should respect those findings. The State did not address he facts nor attempted to refute the contents of the exhibits or discredit Dr. Bruck's findings of facts. I am trying to tell the Court that it must review Georgia's flawed findings in an evidentiary hearing and be the first Court to review withheld exculpatory evidence.
6. The Additional Argument For Appointment Of Counsel document was filed to continue to press the District Court with the fact that I need professional legal assistance and the lack of any professional skills has already caused me to make unartful presentation of facts and pleadings. The State is taking advantage of it by focusing on the minutiae of my pleadings rather than attempting to discern the merits.