Gunther Fiek

Innocent Victim of Mass Hysteria

Status November 2008

November 2008

1.   On November 4, 2008,
the State (Respondent) filed an Amended Answer – Response [27] with a
Supplemental Brief in Support of Original and Amended Answer – Response
attached to it and also a Response [28] to my motions for Limited Discovery, Evidentiary
Hearing and Appointment of Counsel.

2.   As expected, the
State “denies that any of Petitioner’s constitutional rights have been violated
as alleged in the instant petition. All material averments of the petition are
denied”. The State claims the following as to each ground raised:

a.   As
to Ground 1, the State is submitting that “this
claim is new but procedurally defaulted under O. C. G. A. § 9-14-51, as it was
not previously raised in the State courts and would now be found to be
“successive” by the State courts if raised in a second State habeas corpus

b.   As
to Ground 2, the State submits the same response
as above that this claim is new but procedurally defaulted.

c.   To
Ground 3, the State denies the allegations
presented in this ground because it was “found to be procedurally defaulted by
the State appellate court, and this Court should defer to that finding”.

d.   To
Ground 4, it also submits that this claim is new
but procedurally defaulted.

e.   To
Ground 5, the State denies the allegations
because “this claim fails to State a ground for relief under 28 U. S. C. §
2254, as alleged infirmities in State collateral attacks are not grounds for
federal relief”.

f.    In
Ground 6, the State submits this “ground was
reviewed by this State habeas court, decided adversely to Petitioner, and this
Court should defer to that finding because the State habeas court utilized the
correct constitutional standard when evaluating this claim.”

g.   As
to my Actual Innocence / Miscarriage of Justice claim, the State apparently
decided to call it, erroneously, Ground 7 when it was actually presented as an Additional Issue to be Decided Through a Finding of Fact and
Conclusion of Law
. In any event, the State submits that “ the evidence
was found to be constitutionally sufficient pursuant to Jackson v. Virginia,
443 U.S. 307 (1979), by the Georgia Court of Appeals, and this decision should
be given deference under 28 U. S. C. § 2254 (d).”

3.   In plain English,
what the State is trying to tell the District Court on Grounds 1, 2, 3 and 4 is
that because they were not raised previously in a lower court they cannot be
heard (procedurally defaulted). You only get one bite of the apple. So if I try
to go back to a lower court and to raise those issues, I am prohibited from
doing so because you can only file a Habeas Petition to a court once and not
more than once (successive).

4.   The next step would
be to file a Reply to the Respondent’s Answer Response and Amended – Answer –
Response to show the District Court that those grounds raised were not procedural
defaulted and that all the grounds have merit to be heard.

5.   The State is also
asking the District Court to deny me the motions that I filed with the Additive
Amendment as follows:

a.   Motion
for Limited Discovery:
What the State is basically telling the District
Court here is that this motion should not be granted because the documents that
I am requesting were not evidence at trial and not part of the records in this
case. The trial judge had conducted an in-camera inspection and ruled that the
documents contained no exculpatory evidence.

b.   Motion
for Evidentiary Hearing:
The State also opposes the request.

c.   Motion
for Appointment of Counsel:
The State also opposes this request because
“the issues in this case are not complex, and no additional evidence or
investigation is necessary for this Court to evaluate the issues raised in this
case.” Also, the State does not seem to see “why the taxpayers should be
burdened with providing Petitioner counsel at this stage” if I had retained
counsel at the beginning of the federal habeas case.

6.   As with the issues
concerning the grounds raised, I must now file a Reply to the Respondent’s
Response to my motions and show the court that all three motions should be

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