Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case 1 :06-cv-00715-SLR Document 17 Filed O3/05/2007 Page 1 of 4
In The United States District Court
For The District Of Delaware
Edward J. Kelly, : V
Petitioner :
v. :
: Civ. Act_No. 06-715*** _ . . . .. - 1 it
Thomas Carroll, Warden, and : ·_ __ U y _ p . E .
Joseph R. Biden HI, Attorney :
Gsnml = .-5 2001
Respondents : MAR
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_ Pet1t1oner’s Motion To Oppose State’s Motion To Drsmiss
The above captioned Respondents through their attorney Elizabeth R. McFarla;n
has filed a timely motion to dismiss petitioner’s timely appeal to this court from the
Delaware Supreme court pursuant to 28 U.S.C. 2254. The petitioner Edward J. Kelly, in
Pro Se assert the following grounds for this court to not dismiss his habeas corpus:
l. The respondents cite the terms of the Antiterrorism and effective Death Penalty
Act of 1996, Pub L. No. 104-132, 110 Stat. 1214, singed by then President Bill Clinton,
as grounds to dismiss his petition. AEDPA does not apply to petitioner whereas this is
Petitioner’s “f11’St application" under this issue. Although petitioner Kelly has filed at
least three prior claims, they were all separate issues.
2. The respondents state: "Clearly then Kel1y’s argument was available to him
when he filed his earlier federal habeas petitions." This court or the AEDPA standard
cannot hold the petitioner to the same standards as a practicing attomey. The petitioner
Kelly is not a lawyer and he is learning the legal process as he goes along. The omission
he has made over the years was not deliberate, and he should not be punished for his
omissions, especially because he is serving the ultimate prison sentence of "life without
parole." Therefore with a life or death sentence a man should be given every opportunity —
to defend himself} unless Respondents can prove the petitioner was represented by
attorney at each prior habeas proceeding.
3. If this court applies the AEDPA to petitioner will in fact provide a "double
standard" type of justice. There is established case law that states a Pro Se defendant
cannot be paid under the standard for being a lawyer, but yet he is held accountable for
mistakes and omissions as if he is a lawyer. There are other provisions that hold a Pro Se
defendant accountable for legal errors, but none to benefit the Pro Se defendant

Case 1:06-cv-00715-SLR Document 17 Filed O3/05/2007 Page 2 of 4
4. This court must agree that the issue the petitioner presents, Delaware’s Habitual
Offender Statute is of serious interest to more than one hundred Delaware prisoners, the _
state attorney General and the entire Delaware legislators on how prisoners are sentenced
in Delaware under this harsh penalty. In other words the issue is too important to be
dismissed without a fair opportunity for a jury of Delaware citizens to hear the issues
involved.
For the foregoing reasons, the petitioner’s petition for a writ of habeas corpus should not
be dismissed. S `
` Edward] »·' I #0701 e " z e
Delaw · Correcti • ,
1181 Paddock Roa
Smyrna, Delaware 19977
Date: February 28, 2007

Case 1:06-cv-00715-SLR Document 17 Filed O3/05/2007 Page 3 of 4
Certificate Of Service
I herby certify that on Feberuary 28, 2007 I mailed one copy of
the enclosed "Motion to oppose dismissal." filed on February 22, 2007
by the Respondent's attorney. I have placed on true copy in the mail
bag at the Delaware Correctional Center To:
Elizabeth R. McFarlan, Attorney
Deputy Attorney General
Department of Justice
820 N. French Street
Wilmington, Delaware 19801
Edward Kelly 126 Pro Se
Delaware Correctional Center
1181 Paddock Road
Smyrna, Delaware 19977

Case 1:06-cv-00715-SLR Document 17 Filed O3/05/2007 Page 4 of 4
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