UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA

___________________________________

MUMIA ABU-JAMAL,
Case No. 99
Civ 5089 (YOHN)
Petitioner,

-vs-

MARTIN HORN, Commissioner,
Pennsylvania Department of Corrections,
and CONNOR BLAINE, Superintendent of
the State Correctional Institution at Greene,
Defendants.

NOTICE OF FILING

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that Petitioner has today filed with this Honorable Court the following documents:

1. Declaration of Charles R. Honts, Ph. D., Dated May 18, 1999 and Appendices.

2. Declaration of Charles R. Honts, Ph. D., Dated May 16, 2001 and Exhibits.

3. Copy of Letter to Honorable William H. Yohn, Jr., Dated May 29, 2001, attached

(END PAGE 1) =======================================

MARLENE KAMISH, ATTORNEY AT LAW
Licensed to Practice in Illinois
PHONE 412.264.6686 FAX 412.264.7313
2927 WEST LIBERTY AVENUE, #193
PITTSBURGH, PA 15216-2525

May 29, 2001

Honorable William H. Yohn, Jr.
United States District Court
Eastern District of Pennsylvania
U.S. Court House
601 Market Street, Room # 14613
Philadelphia, PA 19106

Re: Mumia Abu-Jamal v Martin Horn, et. al Civil Action No. 99-5089

Dear Judge Yohn:

We have today filed with the court an Application for Leave to Respond and a [Proposed] Response to the Commonwealth's Opposition to the Petitioner's Emergency Motion for an Order Authorizing Deposition and Request for Expedited Consideration of the Motion together with two further affidavits, both by the eminent polygraph expert, Dr. Charles Honts, dated May 18, 1999 and May 16, 2001 respectively, which corroborate Mr. Beverly's testimony and the innocence of the Petitioner.

We feel, however, that we should advise the court that we have determined that we are under an immediate obligation to file a new post-conviction petition in the state courts to present new claims of ineffective representation by Petitioner's prior counsel in the underlying state post-conviction proceedings and related appeal, arising from attorney Williams' book, Executing Justice, published in violation of Rule 1.8(d), Pennsylvania Rules of Professional Conduct, binding in the Eastern District under Rule IV, Rules of Disciplinary Enforcement.

The Comment to Rule 1.8(d) explains that the purpose of the rule is to avoid the inherent conflict of interest for an attorney in publishing a book about a current case in which the attorney is counsel of record. We have found indications that attorney Weinglass was complicate in the publication of Williams' book and violated his duty of loyalty to Petitioner by failing to report Williams' ethical violations to the appropriate disciplinary authorities.

The failure and refusal by Petitioner's prior counsel to present Arnold Beverly's declaration and confession in state post-conviction proceedings, alluded to in the District Attorney's opposition to the motion for deposition, was inextricably intertwined with the conflict of interest arising from attorney Williams' book, as are other instances of ineffective representation in the state court proceedings which we are still uncovering.

Pa. R. Crim. 1504 provides for a state constitutional right to effective representation in post-conviction proceedings. Commonwealth v. Albrecht, 554 Pa. 31(1998); Commonwealth v. Albert, 522 Pa. 331, 561 A. 2d 736 (1988); Commonwealth v. Fiero, 462 Pa. 409, 341 A.2d 448, (1975). Where a state provides a right, the denial of that right violates federal guarantees of due process of law under the 14th Amendment. Griffin v. Illinois, 351 U.S. 12(1955); Blair v. Armontrout, 916 F. 2d 1310, 1335 n.3 (8th Cir. 1990); Douglas v. California, 372 U.S. 353 (1963). It is well-established that a conflict of interest constitutes the "constructive denial of counsel" under United States v. Cronic, 466 U.S. 648, 656 (1984). See Cronic supra: Smith v. Robinson, 528 U.S. 259, 286 (2000); Wood v. Georgia, 450 U.S. 261, 271(1981); Appel v Horn, -F. 3d (3rd Cir., May 3 2001, No. 99_9003); United States v. Cook, 4SF. 3d 388, 393 (lOth Cir. 1995). See also Holloway v. Arkansas, 435 U.S. 475 (1978); United States v. Gambino, 788 F. 2d 938, 950 (3d Cir. 1986); Government of the Virgin islands v. Zepp, 748 F. 2d 125, 131 (3d Cir. 1984).

These claims could not have been presented prior to May 4, 2001, when new counsel substituted in for prior counsel. We are diligently drafting the post-conviction petition and will file it as expeditiously as possible. We also intend to file a motion to the District Court for a stay of these proceedings.

Respectfully submitted,

MARLENE KAMISH, ESQ.
NICK BROWN, ESQ.
ELIOT LEE GROSSMAN, ESQ.
J. MICHAEL FARRELL, ESQ.

By: MARLENE KAMISH
Attorneys for Petitioner
Mumia Abu-Jamal

cc: Lynne Abraham, District Attorney of Philadelphia County
Ronald Eisenberg, Deputy District Attorney, Law Division
Donna Zucker, Chief Federal Litigation
Hugh J. Burns, Jr., Assistant District Attorney

facsimile available in PDF format

[posted 6/11/01]

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