Ugh ... my mind is racing today, and I'm a bit upset. Last night I had law library, and I checked to see if Micko had filed anything in my case and nothing showed up, so instead I wrote my letter to the Legislators. As soon as I came back from the law library, the CO says, "Allwine, I have mail for you" and he hands me Micko's Report and Recommendation (R&R). It was postmarked the 30th, which means it probably arrived Monday, and the DOC had all day to deliver it to me on Monday and on Tuesday and they delivered it after I was at the law library. Because this is the R&R, I only have 14 days in which to respond to it. It was filed by Micko on 12/29, which means that I basically need to send my response out today or tomorrow (at the latest). Had I received the R&R Monday or Tuesday (prior to law library) then I could have typed my response at the law library which would have been much easier than typing it on my typewriter. So that was one frustration. However, my bigger frustration is that Judge Micko just chose to ignore every single issue and claim that I am barred from bring the issues to the federal courts.
I raised several issues and for every single one he basically said that while I cited federal law, I didn't cite federal constitutional issues throughout the appellate process by specifically mentioning the portion of the U.S. Constitution that was being violated and therefore, the State didn't have an opportunity to rule on a federal claim. This allowed Micko to ignore the actual legal claims that are being brought forward. That is so wrong!
This has me really upset. My frustration is about my case, obviously, but it is more than that. From the very beginning, I have been reading and researching how to raise the issues in the State court so that they were ripe to bring to the federal court, and based on my reading and research I did it as well as I could be expected to do (with no legal training). At each level, I raised U.S. Supreme Court case law that was being violated, and since those laws invoke U.S. Constitutional issues, it was my understanding that it was sufficient. Now this judge is saying that it is not sufficient and that I needed to actually specify the U.S. Constitutional violation that I felt was being violated. Here's my big issue with this ... I am not a dumb guy, so if through all of my reading and researching I was unable to 'properly' raise an issue with the federal courts, then how can any of these guys ever expect to get any relief at the federal court level?
The other piece that frustrates me is that the judge obviously knows that I am right and doesn't want to release me. I have read enough of these R&R's now that when they are filed by pro se petitioners often what the judge does is say something like, "it is barred, but we are supposed to view pro se filings liberally, so even if it were not barred it would still fail on the legal merits because of _____." Micko did not do that in my case, which tells me that he didn't want to bring up the legal merits, because they would demand my release.
The whole issue of "liberally construing" pro se petitions is supposed to make the system fair, but judges ignore it when they want to. The rule came about because pro se petitioners are not legally trained, so we are not expected to file everything perfectly, we are simply supposed to be able to raise the legal issue and the judges are supposed to help us out with the formalities behind the legal issue. Back 50 years ago, when this rule came out that is what the judges did. I read a number of cases from the 60's and 70's where an inmate filed something and a judge basically said, "petitioner claimed a search violation but that is the wrong claim for his issue; he should have raised the issue under Due Process and as a 6th Amendment violation, and therefore I will analyze it under the 6th Amendment." Somehow from that time to now the courts expect us to be legally perfect with our arguments, yet they have not given us any legal training or guidelines to perfect our arguments.
So like I said ... Ugh!
I will file my objections to the R&R and basically explain that I raised the issues to the best of my ability, but something tells me that the judge will basically ignore that argument and dismiss the petition, and claim that I can't appeal the decision ... which would be difficult to overcome. So the federal claims are a major uphill battle from here.
However, since the majority of the Lanterman stuff is new evidence, I have a chance to do it all again from the postconviction level, and I will adjust how I do it (if I still don't have a lawyer that can help me ... hopefully the innocence projects will step up) ... still it is frustrating to say the least.
Even though I don't think I could've done it any differently based on what I knew, I feel like I let you guys down ... more importantly, I feel like I let Amy down :'( She deserves justice, and no one wants to give it to her.
I know that you are all excited for me to get released, especially with all this Lanterman stuff that is obviously wrong, and I feel like I messed up. It will take a bit to get over that feeling. (sigh)
I appreciate all of your love and support and I will keep fighting. Eventually, the truth will come out.
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