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.
Gunther Fiek 