Tuesday, 29 May 2012

Rev Matt Hale (Feb 2012) PETITION FOR CERTIFICATE OF APPEALABILITY

Case: 11-3868 Document: 9-1 Filed: 02/13/2012 Pages: 31       
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
Case No. 11-3868

|
MATTHEW HALE, || APPEAL FROM THE UNITED STATES
Appellant, | DISTRICT COURT FOR THE
| NORTHERN DISTRICT OF ILLINOIS
vs. | EASTERN DIVISION, HONORABLE
| JAMES T. MOODY, JUDGE
UNITED STATES OF AMERICA, |
| Civil Case No. 08-cv-00094-JTM
Appellee. | Crim. Case No. 03-cr-00011-JTM
|
APPELLANT HALE’S
PETITION FOR CERTIFICATE OF APPEALABILITY
THE PETITIONER-APPELLANT, MATTHEW HALE, by and through his attorney,
Clifford J. Barnard, pursuant to 28 U.S.C. § 2253(c) and the Federal Rules of Appellate Procedure,
Rule 22(b), hereby petitions to a circuit justice or judge to issue a Certificate of Appealability
(“COA”) with regard to the district court’s denial of his § 2255 motion. As grounds for this petition,
Mr. Hale states as follows:
Application to the District Court
The district court denied a COA on July 22, 2010 when it denied Mr. Hale’s § 2255 motion.
See attached Exhibit 1, Doc. # 50, 1 Opinion and Order at 81. The district court again denied a COA
on October 27, 2011 when it denied Mr. Hale’s F.R.C.P. Rule 59(e) motion. See attached Exhibit
2, Doc. # 68, Opinion and Order at 22.
Standard of Review
Each prisoner seeking review of a final order from a motion under 28 U.S.C. § 2255 is
required to obtain a COA. An applicant must make a “substantial showing of the denial of a
constitutional right,” and the COA “shall indicate which specific issue or issues satisfy the showing
required by paragraph (2).” (28 U.S.C. § 2253(c)(2)) (emphasis added). In defining the “substantial
Throughout this petition, Mr. Hale cites to the record using the docket number and pagination from
the banner placed on the document by the CM/ECF system from Mr. Hale’s district court case.

Case: 11-3868 Document: 9-1 Filed: 02/13/2012 Pages: 31
showing” standard, the United States Supreme Court has admonished courts not to deny an
application merely or solely because a petitioner had been denied relief on the merits. A petitioner
is required to demonstrate that his or her appeal exceeds the “good faith” requirements of 28 U.S.C.
§ 1915 and has to demonstrate “something more than the absence of frivolity.” Barefoot v. Estelle,
463 U.S. 880, 893 (1983) (emphasis added). The Supreme Court has further cautioned that,
the issuance of a certificate of probable cause [now COA] generally should indicate
that an appeal is not legally frivolous, and that a court of appeals should beconfident that petitioner’s claim is squarely foreclosed by statute, rule or authoritativecourt decision, or is lacking any factual basis in the record of the case, before
dismissing it as frivolous.
Barefoot v. Estelle, 463 U.S. at 894 (emphasis added).
... Consistent with our prior precedent and the text of the habeas corpusstatute, we reiterate that a prisoner seeking a COA need only demonstrate “asubstantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253
(c)(2). A petitioner satisfies this standard by demonstrating that jurists of reason
could disagree with the district court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve encouragement
to proceed further. [Citation omitted.]
...
... We look to the District Court’s application of AEDPA to petitioner’sconstitutional claims and ask whether that resolution was debatable among jurists
of reason. This threshold inquiry does not require full consideration of the factual orlegal bases adduced in support of the claims. In fact, the statute forbids it. ...
...
... a COA does not require a showing that the appeal will succeed.
Accordingly, a court of appeals should not decline the application for a COA merelybecause it believes the application will not demonstrate an entitlement to relief. ...
...
... We do not require petitioner to prove, beforetheissuanceofa COA, that
some jurists would grant the petition for habeas corpus. Indeed, a claim can be
debatable even though every jurist of reason might agree, after the COA has beengranted and the case has received full consideration, that petitioner will not prevail.
... The petitioner must demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable or wrong.” [Citation
omitted.]
Miller-El v. Cockrell, 537 U.S. 322, 327, 336-37, 338 (2003) (emphasis added).
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As the Seventh Circuit has stated, a certificate should issue if “reasonable jurists could
debate whether the challenges in [the] habeas petition should [have] been resolved differently or
that [the] petition adequately shows a sufficient chance of the denial of a constitutional right that
he deserves encouragement to proceed further.” Rutledge v. United States, 230 F.3d 1041, 1047 (7th
Cir. 2000) (emphasis added). “Many prisoners who seem likely to lose in the court of appeals
nonetheless are entitled to certificates of appealability under the statutory standard; meritorious
appeals are a subset of those in which a certificate should issue.” Thomas v. United States, 328 F.3d
305, 308 (7th Cir. 2008).
In other words, if any reasonable jurist could think that the district court might have erred
or that the petitioner should be allowed to proceed further, the COA should be granted. In essence,
the standard for COAs is the mirror image of that for motions for judgment of acquittal, with a strong
presumption in the petitioner’s favor instead of with the government: if any reasonable judge (not
jury) could have found merit (not guilt), a certificate should issue.
Below, Mr. Hale makes a substantial showing that he was denied his Sixth Amendment right
to effective counsel and his Fifth Amendment right to due process of law. Furthermore, these issues
warrant review on appeal because they are not legally frivolous, they are not factually unsupported,
nor are they foreclosed by statute, rule or court decision. In addition, the errors of trial counsel
resulted in his conviction for crimes of which he is innocent and, as the Supreme Court has stated,
“a prisoner retains a powerful and legitimate interest in obtaining his release from custody if he is
innocent of the charge for which he is incarcerated.” Kuhlmann v. Wilson, 477 U.S. 436, 452 (1995).
This Court is the last, and in fact only real, meaningful opportunity for Mr. Hale’s strong interest in
this regard to be vindicated and thus review should be granted on this basis as well. Mr. Hale has
been the victim of a miscarriage of justice that can only be rectified by this Court reviewing his case.
Issues for Review by This Court
I. That Mr. Hale was denied his Sixth Amendment right to effective assistance of
counsel at his trial.
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II. That Mr. Hale was denied his Fifth Amendment right to due process of law when the
lower court applied the wrong standard of review to Mr. Hale’s ineffective assistance of counsel
claim by taking the evidence of the case in the light most favorable to the government.
III. That Mr. Hale was denied his Fifth Amendment right to due process of law when the
lower court denied him an evidentiary hearing prior to its ruling on his ineffective assistance of
counsel claim.
IV. That Mr. Hale was denied his Fifth Amendment due process right to be present at all
critical stages of his trial.
I.
Why reasonable jurists could disagree with or debate the lower court’s resolution of Mr. Hale’s ineffective assistance of counsel claim.
A.
A reasonable jurist could disagree with or debate that a lawyer’s failure to understand the facts of his client’s case and present evidence of his innocence is objectively reasonable.
1. The events of December, 2002 leading to the charges.
On the evening of December 4, 2002, Mr. Hale sent F.B.I. informant Tony Evola an email
in which he requested that Evola obtain the home addresses of four individuals, that of U.S. District
Judge Joan H. Lefkow and that of private civil attorneys James Amend, Paul Steadman and Kevin
O’Shea who represented the opposing party in a trademark suit against his church.
On December 5, 2002, Evola unexpectedly appeared at Mr. Hale’s house at which time the
following dialogue took place:
Evola: Well, I got your email about the Jew judge, ...
Hale: Right.
Evola: ... you wanting his address and the other rats’ [all his rats’].2 Ah ...
Hale: That information yes, for educational purposes and for whatever reason you
wish it to be.
Evola: Are we gonna ... I’m workin’ on it. I, I got a way of getting it. Ah, when we
“[T]he other rats” was in the transcript the government provided to the jury but there is evidence that
Evola actually said “all his rats.” In either case, there should have been an apostrophe after the “s” in “rats”
although this was omitted in the government’s transcript.
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get it, we gonna exterminate the rat?
Hale: Well, whatever you wanna do ...
Evola: Jew rat?
Hale: ... basically, it’s, you know? Ah, my position’s always been that I, you know,
I’m gonna fight within the law and but ah, that information’s been pro-,
provided. If you wish to, ah, do anything yourself, you can, you know?
Evola: Okay.
Hale: So that makes it clear.
Evola: Consider it done.
Hale: Good.
Gov’t. Tr. 12/05/02 at 4, line 26 -5, line 20 (emphasis added). Evola then stated that he would get
the address of the “Jew judge, lawyer rat ...” at which point Mr. Hale cut him off. Mr. Hale then told
Evola to send him the addresses of the judge and lawyers as soon as he obtained that “information”
so that Mr. Hale could post it on the internet:
... you know, you can and all that stuff is, I mean yeah, as soon as you get it, I mean send it
certainly. I’ll post it on the internet. We want our people to know and, and ah, information
about these people and ...
Gov’t Tr. 12-5-02 at 7, lines 1-6 (emphasis added).
Four days later on December 9, 2002, Mr. Hale received an email from Evola indicating for
the first time that he, Evola, had murderous designs toward a “femala rat.”
On December 17, 2002, Evola again appeared at Mr. Hale’s house. Mr. Hale told Evola that
he could not be a part of any plot to kill Judge Lefkow and that he could not “be a party to such a
thing.” He told Evola that he had not ordered, instructed or encouraged Judge Lefkow’s murder and
that “I know the law, brother, and I’m just not interested in breaking it.” When Evola told Mr. Hale
that “she’s gotta go down, I guess,” Mr. Hale replied, “Well, I don’t.” Mr. Hale then told Evola that
Evola’s plans were “too serious,” “incredible” (unbelievable), and that he, Mr. Hale, did not “want
anything.” Mr. Hale denied having ordered Judge Lefkow’s murder. The conversation ended, Evola
left and he never made any attempt on the Judge’s life.
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Mr. Hale was arrested on January 8, 2003 and charged with soliciting Judge Lefkow’s murder
and with obstruction of justice by virtue of that alleged solicitation.
2. Counsel’s failure to understand the facts of Mr. Hale’s case.
On April 26, 2004, a jury convicted Mr. Hale on both charges. However, the jury rendered
these verdicts unaware that: (1) Mr. Hale knew that Evola was an F.B.I. informant during the time
that he allegedly solicited Evola to commit murder; and (2) neither Mr. Hale nor Evola were talking
about Judge Lefkow on December 5, 2002 as a “Jew rat” and, therefore, there was no federal target.
Without a federal target, there was no federal case. Mr. Hale had provided his counsel with evidence
to prove and corroborate these facts prior to trial and they were corroborated by counsel’s own
investigation. Counsel, however, failed to present such evidence to the jury.
Counsel never understood Mr. Hale’s insistence that the “Jew rat” Evola intimated on
December 5, 2002 that he, Evola, wanted to kill was actually lawyer Amend and not Judge Lefkow,
never understood that Evola’s December 9, 2002 “femala rat” email announced for the first time that
Evola had plans against Judge Lefkow, and, thus, never understood that Mr. Hale’s statements on
December 17, 2002 were an exculpatory refusal to join Evola’s new plans to kill Judge Lefkow.
“Where defense counsel is so ill-prepared that he fails to understand his client’s factual claims ...,
we have held that counsel fails to provide service within the range of competency expected of
members of the criminal defense bar.” Young v. Zant, 677 F.2d 792, 798 (11th Cir. 1982). Rather,
counsel conceded at trial the government’s claim that Judge Lefkow was the “Jew rat” Evola referred
to on December 5, 2002 and thus the subject of an alleged murder solicitation. Furthermore, counsel
presented an entrapment defense which, by definition, admitted that Mr. Hale had solicited Judge
Lefkow’s murder. In so doing, counsel failed to subject the prosecution to a meaningful adversarial
hearing on an essential element of both charges and accordingly relieved the prosecution of its
burden of proof.
Had the facts supporting Mr. Hale’s innocence been presented to the jury, there is a better
than negligible chance that he would have been acquitted. See United States ex rel Hampton v.
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Leibach, 347 F.3d 219, 246 (7th Cir. 2003) (prejudice for purposes of an ineffective assistance of
counsel claim has been established “so long as the chances of acquittal are better than negligible”).
Counsel performed ineffectively since the trial cannot be relied upon as having produced a just
result. Strickland v. Washington, 466 U.S. 668, 686 (1984). At a minimum, a reasonable jurist could
debate whether that is the case, thus mandating appellate review.
3.
Counsel’s failure to present evidence of Mr. Hale’s innocence.
At trial, counsel had in their possession but failed to present the following evidence which
would have supported Mr. Hale’s innocence:
a.
Mr. Hale knew that Evola was an F.B.I. informant and it is because of that knowledge that he told him that he could do what he wanted, knowing he would not do anything. (See e.g.,
Doc. # 8-4 at 15, para. 32, at 31, para. 16, and at 38, para. 16; Doc. # 52-1 generally, para.
25 specifically.)
b.
Mr. Hale had insisted to defense counsel that “the rat, Jew rat” whom Evola was querying about exterminating on December 5, 2002 was James Amend as far as both Evola and he were concerned. (Doc. # 8-4 at 7-12.)
c.
Mr. Hale had referred to lawyer James Amend, not Judge Lefkow, as a “Jew rat” to lawyers representing him and his church in civil matters. (Doc. # 8-4 at 5 and 35.)
d.
“Jew rat” was Mr. Hale’s personal nickname for lawyer James Amend. (Doc. # 8-4 at 10,
para. 12.)
e.
Evola had said that lawyer Amend “looks like a Jewish rat, all right” during a prior
conversation. (Doc. # 8-4 at 10, para. 12.)
f.
Evola himself referred to a “lawyer rat” during the December 5, 2002 conversation showingthat “the rat, Jew rat” was in fact a lawyer, not Judge Lefkow. (Gov’t. Tr. 12/5/02 at 6.)
g.
The testimony of attorney Glenn Greenwald, John Schlismann, attorney Todd Reardon and Mr. Hale would have confirmed that Mr. Hale had previously used the term “Jew rat” as a
nickname for lawyer Amend.
h.
Mr. Hale and Schlismann would also have testified that Evola, himself, had referred to
lawyer Amend as a “Jew rat.”
i.
Mr. Hale did not think that Judge Lefkow was Jewish. (Doc. # 8-4 at 37, para. 11; Tr. Trans.
Vol. 5 at 20 and 112.)
j.
Mr. Hale had praised Judge Lefkow and was hoping for a favorable outcome for the motions that his church had before her (Doc. # 8-4 at 33-35.)
k.
Numerous witnesses would have testified to and/or corroborated these facts and other
exculpatory evidence. (See, e.g., Doc. # 16-2 at 22-24 and Doc. # 8-4 at 4-40.) (Counsel
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called no witnesses on Mr. Hale’s behalf.)
All of this evidence would have undermined the government’s claim that Judge Lefkow was
the “Jew rat” or that Mr. Hale was soliciting harm to her. Certainly the jury needed to know that
Judge Lefkow was not the subject of a murder solicitation. Counsel also misled the jury as to the
significance of the December 9, 2002 “femala rat” email -that that email was an announcement of
Evola’s new plans against Judge Lefkow -and, thus, not only did Mr. Hale not solicit Judge
Lefkow’s murder on December 5, 2002, but counsel failed to realize and argue that Mr. Hale had
actually refused to join Evola’s plans against her on December 17, 2002. Instead, counsel disparaged
Mr. Hale’s refusal as “silliness.” (Vol. 4 at 32.) See Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir.
2001) (defense counsel has a duty to adequately investigate the defendant’s most important defense,
and a duty to introduce into evidence information that demonstrates factual innocence or that raises
sufficient doubt on that question to undermine confidence in the verdict).
A reasonable jurist certainly could disagree or debate that it was objectively reasonable for
counsel to withhold evidence (and argument) from the jury proving, or tending to prove, that the
above-listed facts were true. A reasonable jurist could also disagree with or find debatable the lower
court’s view that none of Mr. Hale’s evidence of innocence mattered because he and other uncalled
witnesses harbored similar, unpopular beliefs. The lower court decided that none of Mr. Hale’s
unheard evidence would have made a difference because, for example, “Peterson and Robertazzo
[uncalled witnesses for Mr. Hale] were both sympathizers of Mr. Hale and of his white supremacist
philosophy, and this bias would have discounted their credibility” and “Mr. Hale’s testimony on this
issue would have been obviously self-serving.” (Doc. # 68, 10/27/11 Opinion and Order at 11.)
Actually, the fact that Mr. Hale’s uncalled witnesses were white supremacists made them more
credible. 3 As for Mr. Hale’s own testimony, every criminal defendant who testifies does so to serve
Indeed, if a person is willing to espouse something as unpopular as white supremacy today is, that
actually strengthens his credibility versus that of those who hold the same beliefs but do not admit them or even those who do not hold the same beliefs at all. The person is more likely to be sincere because if he were not, he would have nothing to gain from expressing such views that only incur for him societal wrath and hardship as obviously happened with Mr. Hale when his application for an Illinois law license was denied
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himself; this is not a basis to discount every defendant’s testimony. “The most important witness for
the defense in many criminal cases is the defendant himself.” Rock v. Arkansas, 483 U.S. 44, 52
(1987). The lower court should have observed and evaluated Mr. Hale’s witnesses and testimony at
an evidentiary hearing rather than summarily discounting them, especially his attorney witnesses who
were members of the state and federal bars.
Both the solicitation to commit a crime of violence statute and the obstruction of justice
statute required that federal Judge Lefkow, not a private lawyer, be the subject of the alleged
solicitation and obstruction. She was not. And, rather than being irrelevant as the lower court found,
the facts that Mr. Hale told his counsel prior to trial are critical to a proper assessment of whether
counsel performed objectively reasonably. “[I]nquiry into counsel’s conversations with the defendant
... may be critical to a proper assessment of counsel’s ... litigation decisions.” Strickland, 466 U.S.
at 691. To not challenge the central premise of the government’s case was unreasonable or so a
reasonable jurist could find or debate. Mr. Hale is serving decades in prison as a consequence.
Counsel failed to argue in closing that the government had failed to meet its burden of proof
that “the rat, Jew rat” was Judge Lefkow and, thus, relieved the government of its burden to prove
this essential element of both charges. See United States v. Glover, 97 F.3d 1345, 1349 (10th Cir.
1996), quoting Strickland, 466 U.S. at 686 (“[w]hen counsel has unwittingly relieved the government
of its burden of proof, particularly when the evidence of record does not satisfy that burden, it is fair
to say counsel has ‘so undermined the proper functioning of the adversarial process that [it] cannot
be relied on as having produced a just result’”). Because Mr. Hale’s counsel also withheld evidence
and argument from his jury that tended to establish his innocence, this failure likewise “so
undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.” Thus, Mr. Hale has made a substantial showing of a denial of his
constitutional right to effective assistance of counsel under the Sixth Amendment, mandating this
Court’s review. At a minimum, a reasonable jurist could debate or disagree with the lower court’s
and in the years since.
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decision to the contrary.
B.
Since the lower court found it unlikely that any reasonable jury could have found Mr. Hale entrapped, the entrapment defense presented by counsel in Mr.
Hale’s case was objectively unreasonable.
Here is what the lower court had to say in 2004 following Mr. Hale’s trial about the idea that
he was entrapped:
Put another way, were the court to find that there was insufficient evidence that Hale
solicited Evola, then Hale simply would not be guilty of the solicitation charge, and
it would be unnecessary to consider the entrapment defense. This makes the present
case, unlike the ordinary case where an entrapment defense is presented, something
of an all-or-nothing proposition. To reason that the evidence would allow a jury to
conclude that Hale solicited Evola, but only because Evola induced Hale to solicit
him, presents the logical equivalent of a dog chasing its own tail. It seems unlikely
that any reasonable jury would ever arrive at such a labyrinthine conclusion.
Case No. 03 CR 011, Doc. # 249 at 18-19, note 18 (emphasis added).
Thus, according to the lower court shortly after Mr. Hale’s trial had concluded, it was
unlikely that any reasonable jury would ever have arrived at the conclusion that he was entrapped.
The lower court further stated, “the court thinks now that it is a very close question whether the
entrapment instruction was even warranted.” (Id. at 17.) Now, however, in denying Mr. Hale’s §
2255 motion alleging ineffective assistance of counsel, the lower court found that the entrapment
defense presented by his counsel was not objectively unreasonable. “[T]he court has explained
extensively why it wasn’t objectively unreasonable to use an entrapment defense ...” (Doc. # 68,
10/27/11 Opinion and Order at 13.)
The lower court cannot have it both ways. It cannot on the one hand be unlikely that any
reasonable jury would ever have found Mr. Hale entrapped and on the other hand be objectively
reasonable for his counsel to have pursued that defense. It cannot be objectively reasonable for
counsel to have pursued a defense that would require a jury to arrive at a “labyrinthine conclusion”
or “the logical equivalent of a dog chasing its own tail.” At a minimum, a reasonable jurist could
disagree with the lower court or find debatable its conclusion that presenting a defense that it is
unlikely that any reasonable jury would accept could possibly be objectively reasonable. Thus this
Court’s review is warranted. In a sense, the lower court has already ruled (in 2004) that counsel’s
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presentation of an entrapment defense was objectively unreasonable because if it is unlikely that any
reasonable jury would accept such a defense, it can be little else. A reasonable jurist could find that
the lower court had it right in the first place thus mandating review by this Court.
Lastly, a reasonable jurist could disagree or debate that Mr. Hale had to show that an
entrapment defense per se was objectively unreasonable as the lower court opined (Doc. # 68,
10/27/11 Opinion and Order at 19), but rather only that it was objectively unreasonable to withhold
evidence (and argument) that Judge Lefkow was not the “Jew rat” on December 5, 2002 and thus
the subject of any conceivable murder solicitation. In other words, a reasonable jurist could disagree
that it was Mr. Hale’s burden to disprove the reasonableness of an entrapment defense; instead it was
his burden to show that withholding evidence (and argument) of the innocence of one’s client is
itself objectively unreasonable.
C.
Since the lower court was mistaken in its understanding of Mr. Hale’s argumentas well as many of the facts of the case, a reasonable jurist could disagree with or debate its conclusion that Mr. Hale received effective assistance.
The lower court erred in finding the following:
1. That Mr. Hale ever alleged deficient performance of his counsel on the basis
that they did not present his “best” defense. (Doc. # 50, 7/22/10 Opinion and Order at 4-5, 9, 26, 37,
73 and Doc. # 68, 10/27/11 Opinion and Order at 18.)
2. That Mr. Hale’s argument for ineffective assistance was ever based on the
idea that counsel should have admitted that Mr. Hale solicited James Amend’s murder or that any
such admission would ever have been in the offing. (Doc. # 50, 7/22/10 Opinion and Order at 6-11,
13-14, 18, 21-22, 31.) This error greatly impacted the lower court’s decision. (See also, Doc. # 52,
Motion to Reconsider at 9-12 and Doc. # 64, Reply at 3-4, 7-9.) Mr. Hale never solicited anyone’s
murder and thus the lower court’s misapprehension that his argument was based on the idea that
counsel should have admitted that he did in effect skewed its entire reasoning. Nor did Mr. Hale ever
have a “plan” for the murder of anybody. (Doc. # 50, 7/22/10 Opinion and Order at 12-14.) The
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lower court’s opinion was therefore based on an argument that Mr. Hale did not even make.4
3. That Mr. Hale’s counsel realized that the “it” that Evola was referring to on
December 5, 2002 was indeed the “information” that Mr. Hale wanted, the four addresses – not just
Judge Lefkow’s. (Doc. # 50, 7/22/10 Opinion and Order at 15-16 and Doc. # 68, 10/27/11 Opinion
and Order at 6.) The fact that his counsel realized that the emails were talking about several
addresses (Doc. # 50, 7/22/10 Opinion and Order at 16 and Doc. # 68, 10/27/11 Opinion and Order
at 6, note 6) does not mean that they realized this about the in-person conversation between Evola
and Mr. Hale on December 5, 2002. In fact, the cross-examination of Evola indicates otherwise:
Q: And was this right after you said you were wanting his address. Do you seethat on line 1?
[In reality, Mr. Hale was “wanting his address and the other rats’” addresses.]
A: Yes.
Q:
Did Mr. Hale stop you and say, excuse me, I want – I want you to kill a
woman judge, not a man?
A:
No, he did not.
Q:
But it’s your testimony that after you told him that you were going to – that
you wanted his address and that the rat you were going to kill was a him,
correct? (Vol. 8 at 89.)
It is evident that counsel really thought that only one address, Judge Lefkow’s, was being
talked about and that this failure to understand the facts of Mr. Hale’s case warped their entire
representation of him. An accurate determination as to whether his counsel thought that Evola was
querying about the “extermination” of an unspecified “rat, Jew rat” out of four possible people’s
addresses – or whether counsel thought Evola was only talking about a judge’s address – is
obviously very important to a just resolution of Mr. Hale’s claim of ineffective assistance of counsel.
Mr. Hale’s actual case as an innocent man relied on his counsel’s understanding that four addresses
A reasonable jurist could disagree with the lower court’s view that contesting the notion that Judge
Lefkow was the “Jew rat” would have meant conceding that Mr. Hale solicited somebody else’s murder,
especially in light of the likewise unheard evidence that he knew that Evola was informing for the F.B.I. as well as the fact that he plainly said that he was going to fight within the law. Attacking an element of acharge does not somehow concede a different element.
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were being talked about, not just Judge Lefkow’s, and, in fact, that Evola was not even talking about
her as a subject of any conceivable solicitation. A reasonable jurist could disagree with or find
debatable the lower court’s unsupported assumption that counsel actually did realize that four
addresses were being talked about (Doc. # 50, 7/22/10 Opinion and Order at 16) but somehow
decided for unknown and inexplicable “strategic” reasons to discard that obviously exculpatory fact
in Mr. Hale’s favor in preference to the idea that only Judge Lefkow’s address was being talked
about, especially since counsel’s cross examination of Evola above indicates otherwise. In fact, even
if counsel actually did realize that four addresses were being talked about, it is hard to imagine any
objectively reasonable counsel totally forsaking that fact supporting Mr. Hale’s innocence in favor
of the obviously damaging notion that only Judge Lefkow’s was and thus a reasonable jurist could
disagree with the lower court on this basis as well. Nor, notably, did Mr. Hale at his trial need to
“refute” the government’s incorrect claim that Judge Lefkow was the “Jew rat” (see e.g., Doc. # 50,
7/22/10 Opinion and Order at 19, note 17) but rather only demonstrate doubt as to the matter.5 A
reasonable jurist could disagree with or find debatable the lower court’s demand – a demand that
saturates that court’s decision – that Mr. Hale would have had to prove his innocence in order to
demonstrate his counsel’s ineffectiveness (see e.g., id. at 13-14, 17-18 and especially 19, note 17).
A reasonable jurist could disagree with or debate such burden shifting; a criminal defendant is
neither required to prove his innocence at trial nor in an ineffective assistance of counsel claim.
4. That Mr. Hale ever declared a war against Judge Lefkow regardless of
whatever the “war” was supposed to mean (Doc. # 50, 7/22/10 Opinion and Order at 32-33, 57) and
nor did he ever say that a war existed against Judge Lefkow and others (Doc. # 68, 10/27/11 Opinion
and Order at 11). Rather, he wrote an article for his newsletter, sent to dozens of people in an email,
entitled “Rigged Court System Declares War On Church.” There is obviously a meaningful
difference between Mr. Hale declaring a supposed war upon somebody and expressing his First
The evidence withheld from the jury that “Jew rat” was Mr. Hale’s nickname for lawyer James
Amend is obviously highly significant since Evola queried about exterminating a “Jew rat,” not a judge, on December 5, 2002.
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Amendment protected opinion that the court system had declared war on his Church. Nor did Mr.
Hale ever link the quotation from his church’s scripture, The White Man’s Bible, with Judge Lefkow
or any other individual as the lower court implied. (Doc. # 68, 10/27/11 Opinion and Order at 11.)
Both the email and his quoting from The White Man’s Bible are squarely protected by the First
Amendment.
5. No, “Hale’s December 5, 2002 email message” (Doc. # 50, 7/22/10 Opinion
and Order at 21, lines 7-8) was not the issue but rather the conversation between Mr. Hale and Evola
that occurred on that date was the issue.
6. While the lower court deemed it “entirely clear” that Evola’s statement “his
address and the other rats” meant addresses (Doc. # 50, 7/22/10 Opinion and Order at 23, note 19)
as a means of supporting its denial of Mr. Hale’s section 2255 motion, the lower court just as
“plainly” had deemed the statement to mean only Judge Lefkow’s address in order to support its
denial of Mr. Hale’s motion for judgment of acquittal (03 CR 011, Doc. # 250 and Doc. # 272 at
3-5). The lower court cannot have it both ways depending on which of his motions it wishes to deny.
A reasonable jurist could certainly disagree or debate that it can.
7. As for Mr. Hale’s challenge to the accuracy of the government transcript of
the December 5, 2002 recording, the point has always been that his version would have withdrawn
Judge Lefkow from the group of “rats” thus supporting his claim that she was not the subject of
any conceivable solicitation, not that an accurate transcript would show that it was indeed lawyer
Amend, specifically, who was being talked about. (Doc. # 50, 7/22/10 Opinion and Order at 25.) The
latter point was up to his counsel to show through other evidence including witness testimony.
8. Lastly, while the lower court opined that, in its view, the evidence that Mr.
Hale solicited Jon Fox was “quite strong” or “very strong” (Doc. # 50, 7/22/10 Opinion and Order
at 19, note 16 and Doc. # 68, 10/27/11 Opinion and Order at 3, note 3) and hence that his acquittal
on that count makes it more likely that he received effective assistance of counsel, it bears pointing
out that evidence for that charge rested solely on the word of a man who admitted to suffer from
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mental illness 6 (e.g., Vol. 4, excerpted), admitted that he lies when he is angry (Vol. 6 at 70),
admitted to being an “enemy” of Mr. Hale (Vol. at 65), and was accused of battery upon a police
officer and screaming and cursing at a school bus full of children (Vol. 6 at 26 and 36). In any event,
the fact that counsel may have performed effectively in regard to Fox does not mean that they
performed effectively as to the other charges.
D.
A reasonable jurist could disagree or debate that it was objectively reasonable and without prejudice to Mr. Hale for counsel to fail to challenge juror
Hoffman for cause or peremptorily.
Considering Hoffman’s background as someone who had heard that Ben Smith, an alleged
follower of Mr. Hale who went on a racist shooting spree in 1999, had “said something like he was
told to go do what he had done,” presumably by Mr. Hale or so it was perhaps implied; that Hoffman
was involved in a homosexual relationship with a black man whereas Mr. Hale’s church was overtly
and publicly hostile to both homosexuality and interracial relationships, calling participants in the
latter “race traitors,” and that such animosity was likely to come out at his trial; that Hoffman was
an Assistant Dean at Northwestern University where one of Smith’s murdered victims, Ricky
Byrdsong, had coached basketball; and that Hoffman lived in the same neighborhood where Smith
had shot racial minorities, a reasonable jurist could disagree with or debate the lower court’s ruling
that Mr. Hale’s counsel performed objectively reasonably by failing to challenge Hoffman for cause
or peremptorily. (Doc. # 50, 7/22/10 Opinion and Order at 62-64.)
First, Mr. Hale’s counsel failed even to explore where Hoffman had heard that “Smith said
something like he was told to go do what he had done” and what he took that to mean. Second, a
person involved in an interracial sexual relationship with another man is likely to judge a person
publicly hostile to such relationships more harshly than someone who is not. Third, a juror who
worked at the same place as one of Smith’s murdered victims would reasonably be expected to have
to defend any verdict of not guilty to his colleagues and students, thus providing incentive to find
Mr. Hale guilty instead so as to avoid any such controversy. Fourth, a juror who lived in the same
Fox subsequently committed suicide in November 2005.
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neighborhood of several of Smith’s other victims could reasonably likewise be expected to have to
defend any not guilty verdict to neighbors, thus also providing an incentive to find Mr. Hale guilty.
On its face, a reasonable jurist could find the selection of such a juror for Mr. Hale’s particular case
to be objectively unreasonable due to all of these factors. While “actual bias” (id. at 63) may not be
present here since Hoffman did not explicitly state that he was biased, a reasonable jurist could
certainly find that bias is implied. Nor did Hoffman ever offer “assurances” that he could be fair and
impartial as the lower court claimed. (Id. at 64.) Rather, he never expressed any degree of certainty
that he could.
A reasonable jurist could further find that Mr. Hale’s counsel should have probed into
Hoffman’s bias rather than simply taking his “belief” that he could be fair and impartial at face
value. Bias can be present even when a juror believes himself to be fair and impartial and says so as
well as when a juror does not believe himself to be fair and impartial but says that he is in order to
secure a seat on the jury of a man he has reason to be prejudiced against because of his own
background. In short, a reasonable jurist could certainly disagree with the lower court that counsel’s
voir dire and seating of Hoffman was objectively reasonable performance considering the unique
circumstances of Mr. Hale’s case. A reasonable jurist could debate whether Hoffman truly would
judge Mr. Hale exclusively on the evidence of the case irrespective of what he had heard about
Smith, his interracial relationship, and the potential displeasure of his colleagues at work and that
of his neighbors were he to arrive at a not guilty verdict. The lower court can easily say now that a
challenge for cause would have been overruled (id. at 63) but this is six years after the fact and does
not take into account what other information and possible admissions counsel could have gleaned
from Hoffman had counsel conducted a more thorough voir dire. As for challenging Hoffman
peremptorily, a reasonable jurist could indeed find that Hoffman’s presence on the jury did infect
the “entire trial with obvious unfairness” Hughes v. United States, 258 F.3d 453, 457 (6th Cir. 2001),
especially considering the fact that Hoffman was made jury foreman.
E.
A reasonable jurist could disagree or debate that Mr. Hale consented to his absence from individual voir dire or that he otherwise waived his presence.
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The linchpin of the lower court’s decision that his counsel was not ineffective for failing to
object to his exclusion from individual voir dire was that Mr. Hale consented to that exclusion. (Doc.
# 50, 7/22/10 Opinion and Order at 64-70.) There is, however, no record support for such a
supposition. The sole part of the trial record that might bear on the matter argues the other way, with
counsel telling the court, “Mr. Hale had asked whether I thought he should come here. I said I would
report back. I said I thought it okay if he was not here” to which the court replied “Yes, tell him.”
The context makes clear that the lower court is telling counsel to tell Mr. Hale that it is okay that
he is not there, not that Mr. Hale had already “consented” to not being there. (Mr. Hale, in fact,
never consented.) This was furthermore said after the individual voir dire had already started with
Mr. Hale’s constitutional right to be present hence already violated. The fact is that Mr. Hale did not
understand why he was being excluded from the individual voir dire process and nor did counsel
ever “report back.” Rather, there is no break in the proceedings and they continued at length before
any break occurred. Furthermore, the possibility that counsel at some point may have told Mr. Hale
that they and the court thought it was “okay” that he not be present for such a critical part of the trial
clearly does not mean that he consented to his absence, especially since he may not have known that
he had a constitutional right to be there. This is especially so since he may have interpreted the
“okay” of his not being present, coming from a federal judge (if his counsel ever did convey the
message), as meaning that he did not have a right to be present. In other words, if a federal judge is
saying that it is okay for a criminal defendant to not be present for individual voir dire, the defendant
can logically take that to mean that he does not have a right to be there. “[T]here can be no effective
waiver of a fundamental constitutional right unless there is an intentional relinquishment or
abandonment of a known right or privilege” as reasonable jurists held in United States v. Teague,
953 F.2d 1525, 1533 (11th Cir. 1992) (emphasis in original). Some reasonable jurists could say that
they do not think the transcript shows that Mr. Hale waived his presence. For all of these reasons,
a reasonable jurist could disagree with or debate the lower court’s finding that Mr. Hale consented
to his absence from individual voir dire.
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At a minimum, an evidentiary hearing should have been held as to the matter, especially since
Mr. Hale stated in his Declaration in support of his section 2255 motion that individual voir dire
“was held outside the courtroom and outside my presence without my consent” (Doc. # 8-4 at 14,
para 23). This statement should have been taken as true for purposes of requiring an evidentiary
hearing or so a reasonable jurist could find. Reasonable jurists have further held that every
reasonable presumption should be indulged against the waiver of a fundamental trial right, Walton
v. Briley, 361 F.3d 431, 433 (7th Cir. 2004), such as the right to be present at all critical stages of
the trial, and that “a purported waiver by counsel is not adequate to affect a waiver,” United States
v. Rodriguez, 67 F.3d 1312, 1316 (7th Cir. 1995). Thus the lower court’s various speculations as to
why Mr. Hale would have or might have consented or that there was a “good reason” for him to do
so are inapposite. (Doc. # 50, 7/22/10 Opinion and Order at 65-67.) The lower court itself
acknowledged that there was doubt that he consented to his absence (id.) and such doubt should have
been resolved at an evidentiary hearing rather than resolved against him without one.
Ironically, the lower court mentioned that “the record shows that when [Mr. Hale] disagreed
with his attorney’s decisions, he made that known to the court,” “[s]uggesting that Hale in fact did
agree with his attorney to waive his presence” (Doc. # 50, 7/22/10 Opinion and Order at 65) and yet
it was his very exclusion without his consent from individual voir dire and ensuing jury selection that
prompted him finally to demand to his counsel that he be allowed to address the court. In other
words, it is precisely because Mr. Hale thought that he had been excluded against his will from
individual voir dire that caused him to later essentially force an impasse in the proceedings and
demand to see the judge to express his concerns over the racial makeup of the jury that the lower
court cited. This then is further supportive of his claim that his absence was non-consensual. A
reasonable jurist could find that, as he was in custody (clearly he was not free to go) and did not
consent to his absence, Rodriguez indeed applies and his convictions must therefore be reversed.
(Doc. # 50, 7/22/10 Opinion and Order at 66.)
A reasonable jurist could further disagree with or debate the notion that Mr. Hale had to
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affirmatively insist to his counsel that he be allowed to be there (id. at 67) as such a notion does not
appear to be anywhere in the law. The lower court cited Taylor v. United States, 287 F.3d 658, 66162
(7th Cir. 2002) but Taylor had nothing to do with absence. The lower court also cited United
States v. Boyd, 86 F.3d 719, 723-24 (7th Cir. 1996) but that case likewise had nothing to do with
absence from voir dire.
Lastly, a reasonable jurist could disagree with or debate the lower court’s conclusion that Mr.
Hale had failed to show prejudice. (Doc. # 50, 7/22/10 Opinion and Order at 69-70.) First, Mr.
Hale’s argument was by no means limited to the presence of juror Hoffman but rather included two
additional jurors who, unbeknownst to Mr. Hale, had expressed affection for Smith’s murder victim
Ricky Byrdsong during individual voir dire. (Doc. # 16-2 at 42.) A reasonable jurist could find that
the presence of these arguably biased jurors undermines confidence in the verdict and thus a
reasonable jurist could find that the prejudice component of Strickland was met. “To prevail on an
ineffective-assistance of counsel claim under Strickland, a petitioner must demonstrate that his
counsel’s assistance ... resulted in a substantial risk of prejudice.” Brown v. Finnan, 598 F.3d 416,
419 (7th Cir. 2010) (emphasis added). A reasonable jurist could clearly find that prejudice prong
indeed was met since arguably biased jurors do create a substantial risk of prejudice almost as a
matter of definition. Since the lower court failed to realize that Mr. Hale’s argument was not limited
to Hoffman, a reasonable jurist could disagree with or debate its conclusion that there was no
prejudice predicated on that basis. Second, while it could possibly be true that if this were Mr. Hale’s
only specific instance of ineffective assistance of counsel that he could not show prejudice, it must
be recalled that there are many specific instances of deficient performance in this case and thus the
presence of arguably biased jurors contributes to the cumulative effect of prejudice that he suffered
by virtue of his counsel’s deficient performance throughout the entire trial. When reasonable jurists
could debate whether counsel’s errors combined to create a reasonable probability of a different
outcome, a COA should be granted. Sussman v. Deppisch, 2009 U.S. Dist. LEXIS 111197 (W.D.
Wisc. 2009). Thus a reasonable jurist could indeed find that Mr. Hale was prejudiced by his
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counsel’s failure to object to his absence from individual voir dire or, put another way, it would not
be unreasonable for a jurist to find that he was.
F.
A reasonable jurist could disagree or debate that telling the jury that one’sclient “deserves to be convicted” and other such hostile remarks is objectively reasonable.
What the lower court in denying this instance of ineffective assistance (Doc. # 50, 7/22/10
Opinion and Order at 73-74) apparently did not appreciate was that counsel did not have to choose
between severe attacks upon their client and being his “kindred spirit.” There is, rather, a vast,
reasonable middle ground. Nor is it true that counsel’s attacks were directed at Mr. Hale’s beliefs
as implied by the lower court but rather were directed at Mr. Hale personally. Notably, furthermore,
the lower court left out of its opinion the worst attack of all: that Mr. Hale “deserves to be convicted
on a moral basis.” (Vol. 11 at 48.) A reasonable jurist could find this to be an invitation by counsel
to convict and accordingly objectively unreasonable. A reasonable jurist could certainly agree that
counsel acted properly by distancing themselves from Mr. Hale’s beliefs and he has never quarreled
with them doing so. However, a reasonable jurist could likewise find that counsel crossed the line
by attacking him personally and by stating that he “deserves to be convicted.” Reasonable jurists in
a similar case found that such attacks can constitute deficient performance. See Rickman v. Bell, 131
F.3d 1150, 1154-60 (6th Cir. 1997). Rickman is similar to Mr. Hale’s case in many respects.
It should also be considered that, had counsel properly understood the facts of Mr. Hale’s
case and accordingly contested the idea that Judge Lefkow was the subject of any conceivable
murder solicitation, attacks upon Mr. Hale as a means of building alleged rapport with the jury would
not have been thought necessary. In other words, counsel launched personal attacks against Mr. Hale
because they perceived this as being a difficult case to win. It was not. A reasonable jurist could find
that one error led to another here with the prejudice to Mr. Hale magnified.
G.
Further legal errors that impacted the lower court’s resolution of Mr. Hale’s ineffective assistance claim.
1. The lower court stated, “[o]nly if that decision [the defense presented] was
one that no competent attorney would have made, and only if that mistake caused Hale prejudice,
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did Hale receive ineffective assistance of counsel.” (Doc. # 50, 7/22/10 Opinion and Order at 26.)
A reasonable jurist could disagree with or debate, however, the idea that any reasonable attorney
would have allowed this case to go to verdict under the false assumption (of both attorney and jury
alike) that Judge Lefkow was the subject of any conceivable murder solicitation on December 5,
2002. This is so considering the evidence so much at odds with that and that the government’s case
would have been gutted without the false assumption being embraced. Prejudice, for its part, follows
from the foregoing or so a reasonable jurist could equally find. Clearly there is a “better than a
negligible” chance that Mr. Hale would have been acquitted. Leibach, 347 F.3d at 246.
2. Mr. Hale’s allegation concerning the admission of the Seventh Circuit
trademark case into evidence (Doc. # 50, 7/22/10 Opinion and Order at 50-51) had nothing to do
with whether counsel should have objected to its use as evidence as the lower court erroneously
opined (id. at 51) but rather whether counsel performed objectively reasonably when they had failed
to carefully read (or even read at all) the opinion prior to the government’s seeking its admission into
evidence and consequently failed to object to its admission. In other words, counsel failed to object
to the admission of the opinion into evidence because they did not know what was in it. Furthermore,
the “parenthetical statement” about a supposed murder having been “orchestrated” by Mr. Hale’s
church was highlighted in the copy given to the jury. The lower court addressed neither of what a
reasonable jurist could find to be objectively unreasonable omissions by counsel and thus Mr. Hale’s
claim likewise deserves encouragement to proceed further in this court since it did not receive a
hearing on these points in the lower court. A reasonable jurist could find that it is objectively
unreasonable for a lawyer to fail to familiarize himself with evidence in his possession, as was held
in Williams v. Washington, 59 F.3d 673, 680 (7th Cir. 1993). The trial transcript shows that counsel
were taken by surprise that the statement about Mr. Hale’s church having previously “orchestrated
a murder” – whether technically the same legal entity or not – was in the Seventh Circuit opinion.
Obviously counsel should have known in order to reasonably decide whether to object or not object
to the admission of the opinion into evidence or so a reasonable jurist could find. This was a
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solicitation to commit murder case in which any evidence of supposed previous murders associated
with Mr. Hale or his church obviously posed a substantial risk of prejudice.
3. As for counsel’s deliberate elicitation of testimony from Evola that Yonkers
had told him that Mr. Hale had solicited him (Yonkers) “to do what Smith did,” a reasonable jurist
could disagree with or debate the lower court’s view that such a deliberate elicitation of testimony
clearly damaging to their client – and inadmissible hearsay testimony at that – was objectively
reasonable. (Doc. # 50, 7/22/10 Opinion and Order at 53-56.) Even if it fell under a conceivable
tactic or strategy, a reasonable jurist could find that seeking hearsay testimony that one’s client has
solicited somebody else to go on a shooting spree – especially in a solicitation to commit murder
case – was an objectively unreasonable tactic or strategy and, furthermore, that it was objectively
unreasonable for counsel to think that such testimony was admissible in the first place since
whatever Yonkers told Evola was plainly hearsay without any exceptions so as to be admitted. Thus,
due to counsel’s actions, the jury was told that another person had been solicited by Mr. Hale to kill
people. A reasonable jurist could disagree with or debate that such conduct by counsel was
objectively reasonable as reasonable jurists similarly concluded in White v. McAninch, 235 F.3d 988,
997-1000 (6th Cir.2000). Furthermore, due to the obvious hearsay nature of whatever Yonkers
supposedly told Evola, a reasonable jurist could find that objectively reasonable counsel would have
at least asked for a ruling from the court as to the admissibility of the testimony before putting it in
front of the jury.
4. The lower court, regarding Mr. Hale’s allegation that his counsel failed to
prepare him to testify at his trial – and failed in fact to prepare for any possibility that he would
testify – stated that “[s]imply put, it cannot be ineffective assistance for a lawyer to fail to prepare
his client to testify, if the client has decided not to testify.” (Doc. # 50, 7/22/10 Opinion and Order
at 71.) However, a reasonable jurist could clearly disagree with or debate the idea that ineffective
assistance of counsel in not preparing their client to testify somehow becomes effective assistance
should counsel subsequently persuade their client to waive his right to testify. In other words, a
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reasonable jurist could disagree with or debate the idea that Mr. Hale’s waiver erased any ineffective
assistance on the part of counsel. In fact, the record in this case shows that Mr. Hale waived his right
to testify because his counsel were not prepared (Doc. # 8-4 at 14, para. 26-27); his waiver did not
somehow absolve that lack of preparation or so a reasonable jurist could find.
As for counsel telling the court that Mr. Hale only wanted to testify as to Counts 1 and 5
(Doc. # 50, 7/22/10 Opinion and Order at 71, note 42), counsel misrepresented Mr. Hale’s wishes
(Doc. # 68, 10/27/11 Opinion and Order at 7). Thus a reasonable jurist could likewise disagree that
the effort to have him testify only to the non-solicitation obstruction counts absolved their
objectively unreasonable performance otherwise.
As for the lower court’s persistent reminder that Mr. Hale was an “attorney” (Doc. # 50,
7/22/10 Opinion and Order at 20, 65, 72 and Doc. # 68, 10/27/11 Opinion and Order at 7), it should
be recalled that he was denied a law license by the State of Illinois and hence had never practiced.
There is obviously a chasm between having graduated from law school and engaging in trial practice.
Thus he should not be held to some kind of higher burden or so a reasonable jurist could find.
If reasonable jurists could find that incorrect advice that induces a defendant to waive his
right to testify can constitute ineffective assistance, Starkweather v. Smith, 574 F.3d 399, 403 (7th
Cir. 2009) (Doc. # 50, 7/22/10 Opinion and Order at 72), reasonable jurists could likewise find that
the failures here that led Mr. Hale to waive his right to testify also could constitute ineffective
assistance. The main reason why counsel advised Mr. Hale not to testify was because counsel
thought that Evola was only talking about one address on December 5, 2002 and thus Mr. Hale’s
insistence that “the rat, Jew rat” was not Judge Lefkow made no sense to them. A reasonable jurist
could clearly find that such a failure to understand the facts of Mr. Hale’s case and subsequent advice
not to testify based on that failure, constitutes objectively unreasonable performance. 7 Deficiency
The lower court went so far to say that, because Mr. Hale waived his right to testify at trial, he is not
allowed to say at an evidentiary hearing what his testimony would have been. (Doc. # 68, 10/27/11 Opinion
and Order at 9, n. 8.) A reasonable jurist could clearly disagree with or debate such a broad notion foundnowhere in the law.
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is present where counsel’s failure “was not based on ‘strategy,’ but on counsel’s mistaken beliefs ...”
Kimmelman v. Morrison, 477 U.S. 365, 385 (1986).
II.
Why reasonable jurists could disagree or debate that the lower court employed thecorrect standard of review in deciding Mr. Hale’s 28 U.S.C. § 2255 motion.
The lower court improperly treated Mr. Hale’s § 2255 motion as a mixture between a motion
pursuant to 28 U.S.C. § 2255 (which it is) and a motion for judgment of acquittal (which it is not),
holding that, anytime a reasonable jury could have found guilt, Mr. Hale’s counsel also ipso facto
acted reasonably. This is not the issue. Whether a reasonable jury could still have found Mr. Hale
guilty without the alleged errors of counsel is not relevant as to whether the errors of the counsel
were themselves unreasonable (and thus deficient) and undermined confidence in the outcome
(and thus prejudicial).
Mr. Hale directs the Court to the following passages of statements by the lower court
whereby the legal standard for a motion for judgment of acquittal (whether any jury could have
found guilt beyond a reasonable doubt) improperly intrudes upon the lower court’s analysis:
Viewing the evidence most favorably to the government, however, a reasonable jury
could, and did, find that Hale inveigled Evola. (Doc. # 50, 7/22/10 Opinion and
Order at 70, note 41 (emphasis added).)
[T]he court has already painstakingly explained why, when the evidence is viewedas a whole, the most plausible interpretation of the initial conversation between Haleand Evola is that Hale understood Evola to be referring to the “extermination” of
Judge Lefkow. (Id at 13.)
Nowhere on the audio recordings or e-mail messages admitted into evidence does
Hale tell Evola not to commit such an atrocious crime. (Id at 10 (emphasis added).)
[N]othing ... persuades the court that the evidence should be viewed differently. (Id
at 13 (emphasis added).)
As has been the explained previously and again herein, while that might be a
reasonable view of the evidence, it is not the only reasonable view and is one the
jury rejected. (Id at 14 (emphasis added).)
A reasonable view of this conversation is that Hale encouraged Evola to continuewith the plan by reminding him that whatever he was going to do was his “own
business” while engaging in the “plausible deniability” tactic ... (Id at 14, note 8
(emphasis added).)
[A] completely plausible view of the evidence is that Hale understood the discussion
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to concern Judge Lefkow from the start. (Id at 15 (emphasis added).)
This argument ignores the fact that cases can be proved entirely by circumstantial
evidence, and ... there was ample circumstantial evidence to allow a reasonable jury
to conclude that Hale and Evola were referring to Judge Lefkow. (Id at 22 (emphasis
added).)
Either way, the “rat” to be exterminated could have meant Judge Lefkow. (Id at 26
(emphasis added).)
The government’s theory was that Hale encouraged his acolytes to commit violent
acts while at the same time denying personal involvement to create “plausible
deniability.” (Id at 10 (emphasis added).)
These statements evince that the lower court applied the wrong standard of review to Mr.

Hale’s § 2255 motion. The issue is not what a “reasonable view” of the evidence might be nor what
a reasonable jury could have found “[v]iewing the evidence most favorable to the government” but
rather whether counsel were unreasonable in failing to challenge key elements of the government’s
case. Simply put, the government is not supposed to receive the benefit of any evidentiary inferences
against Mr. Hale pursuant to the resolution of a § 2255 motion. By allowing the standard for a
motion for judgment of acquittal to repeatedly seep into its reasoning, the lower court subjected Mr.
Hale to a much higher burden than the law for ineffective assistance provides, namely forcing him
to prove that no jury would have seen matters other than as he claims, which is an impossible
standard on its face.
By means of the analogy of a rape case, the fact that a reasonable jury could have found that
sex was obtained by force does not somehow absolve counsel from presenting evidence and
argument that the sex was consensual should that evidence exist. Likewise here, the fact that a
reasonable jury could have found that Judge Lefkow was the “Jew rat” does not somehow absolve
counsel from presenting the evidence and argument that she was not. Quite simply, contrary to the
opinion of the lower court, counsel’s performance is not to be judged on the basis of the evidence
that the jury heard but rather on the basis of what evidence of innocence counsel withheld from the
jury. In the aforementioned rape analogy, evidence of innocence was withheld. In Mr. Hale’s case,
evidence of innocence was withheld. The situations are analogous and counsel were deficient in both
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because evidence of innocence was indeed withheld. Objectively reasonable counsel do not withhold
evidence (and argument) of innocence or so a reasonable jurist could find. The fact that the jury
could have disagreed with the evidence is not the issue. The central theme of the lower court’s
opinion is that, since a reasonable jury could have found that Judge Lefkow was the “Jew rat,”
counsel acted objectively reasonably by conceding that she was. A reasonable jurist could disagree
with or debate such a conclusion since counsel’s performance is not to be merely judged on the
government’s evidence but is also to be judged on the evidence coming from one’s client. A
reasonable jurist could find that Mr. Hale’s due process rights were violated by the lower court’s
application of the wrong standard of review.
As for the lower court “incorporating its rulings and analysis in post-trial motions” into its
Opinion and Order (Doc. # 58, Gov’t’s Resp. at 9), the very post-trial motions in question involved
Mr. Hale’s denied motion for judgment of acquittal and hence its reliance on the same reasoning in
denying his § 2255 motion is indicative that the wrong legal standard of review was in fact
employed. Again, whether or not a reasonable jury could have found Mr. Hale guilty is irrelevant
as to whether counsel performed unreasonably in withholding facts and argument from the jury that
tended to exculpate him and whether confidence in the outcome was thereby undermined.
III.
Why reasonable jurists could disagree or debate that the lower court properly deniedMr. Hale an evidentiary hearing prior to its ruling on his ineffective assistance ofcounsel claim.
Mr. Hale requested an evidentiary hearing in his § 2255 motion which the lower court denied
on the basis that the files and records conclusively showed that he was not entitled to any relief.
(Doc. # 50, 7/22/10 Opinion and Order at 1, 27, and 81.)
The lower court’s denial of Mr. Hale’s request for an evidentiary hearing to resolve factual
disputes is reviewed for abuse of discretion. Bruce v. United States, 256 F.3d 592, 597 (7th Cir.
2001). A § 2255 motion can be dismissed without a hearing only if the defendant’s allegations, if
accepted as true, would not entitle him to relief, or if the allegations cannot be accepted as true
because they are patently frivolous or merely conclusory. Engelen v. United States, 68 F.3d 238, 240
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(8th Cir. 1995).
28 U.S.C. § 2255 unambiguously requires that an evidentiary hearing be granted “unless the
motion and the files and records of the case conclusively show that the prisoner is entitled to no relief
...” 28 U.S.C. § 2255. See also, Machibroda v. United States, 368 U.S. 487, 494 (1962); Hill v.
Lockhart, 474 U.S. 52 (1985); Sanders v. United States, 373 U.S. 1, 6 (1963). Therefore, unless the
factual assertions made by the defendant are “patently frivolous” or “palpably incredible,” if a
colorable claim for relief has been made, the defendant has the right to be heard and his motion
cannot be summarily dismissed. Machibroda v. United States, 368 U.S. at 495; Blackledge v.
Allison, 431 U.S. 63, 75-76 (1977). “A § 2255 petitioner is entitled to an evidentiary hearing onhis
claims, when he alleges facts that, if proven, would entitle him to relief.” Hall v. United States, 371
F.3d 969, 972 (7th Cir. 2004) (emphasis added). “While [the petitioner] is correct that this court
requires a district court to grant an evidentiary hearing if a § 2255 petitioner alleges facts that, if
proven would entitle him to relief, the threshold determination that the petitioner has sufficiently
alleged such facts requires the petitioner to submit a sworn affidavit showing what specific facts
support the petitioner’s assertions.” Galbraith v. United States, 313 F.3d 1001, 1009 (7th Cir. 2002)
(emphasis added) (internal citations and quotation marks omitted). 8 “[T]he verification requirement
serves to ensure that a petitioner can provide some evidence beyond conclusory and speculative
allegations, even if that evidence is his verified statement alone.” Kafo v. United States, 467 F.3d
1063, 1068 (7th Cir. 2006) (italics in original). See also, Bruce v. United States, 256 F.3d at 598-99
(the district court abused its discretion in refusing to conduct an evidentiary hearing on a failure to
investigate claim made under 28 U.S.C. § 2255, where the affidavits of trial counsel, defendant, and
the prospective alibi witnesses presented questions of fact as to whether counsel adequately assessed
the potential testimony of these witnesses).
Even if the factual assertions seem improbable or unbelievable, this contention cannot serve
Mr. Hale submitted 15 affidavits and declarations in support of his § 2255 motion. (Doc. #’s 8-4, 362,
52-1 and 65-1.)
27


Case: 11-3868 Document: 9-1 Filed: 02/13/2012 Pages: 31
as a basis for denying the defendant an opportunity to prove the allegations. Lindhorst v. United
States, 585 F.2d 361, 365 (8th Cir. 1978); Machibroda v. United States, 368 U.S. at 495. Only by
granting a hearing to afford the defendant an opportunity to prove the allegations can the function
of 28 U.S.C. § 2255 be served. Machibroda v. United States, 368 U.S. at 495. As the Supreme Court
has stated:
The need for great care in criminal collateral procedure is well evidenced. ... [I]t is
imperative that a fair opportunity for collateral relief be afforded. An applicant for
such relief ought not to be held to the niceties of lawyers' pleadings or be cursorily
dismissed because the claim seems unlikely to prove meritorious. That his
application is vexatious or repetitious, or that his claim lack any substance, must befairly demonstrated.
Sanders v. United States, 373 U.S. at 22 (emphasis added).
In Mr. Hale’s case, the “files and records” including numerous affidavits and declarations
(including Mr. Hale’s declarations) clearly show that Mr. Hale has made specific factual allegations
that, when assumed proven, state a claim on which relief could be granted. An ineffective assistance
of counsel claim will often require a hearing because “‘[a]ttorney errors come in an infinite variety
and are as likely to be utterly harmless in a particular case as they are to be prejudicial. ...
Representation is an art, and an act or omission that is unprofessional in one case may be sound or
even brilliant in another.’” Hill v. Lockhart, 474 U.S. at 57-58 (quoting Strickland v. Washington,
466 U.S. at 693). Because Mr. Hale alleged credible, non-conclusory evidence that demonstrated that
trial counsel were ineffective, he was entitled to a hearing or so a reasonable jurist could find. When
the Court of Appeals determines that it cannot be said that the record “conclusively shows” that a
petitioner is entitled to no relief, it will grant the petition and remand back to district court. Osagiede
v. United States, 543 F.3d 399, 413-414 (7th Cir. 2008).
IV.
Why reasonable jurists could disagree with or debate the lower court’s resolution ofMr. Hale’s claim that his right to be present at all critical stages of his trial wasviolated.
The lower court “rested its denial” of Mr. Hale’s claim on the basis that “his attorney, with
Hale’s obvious acquiescence, waived Hale’s presence” (Doc. # 50, 7/22/10 Opinion and Order at
76) but, as stated supra at 16-19, Mr. Hale did not consent to his absence. At a minimum, a
28


Case: 11-3868 Document: 9-1 Filed: 02/13/2012 Pages: 31
reasonable jurist could disagree or debate that he did for the reasons set forth supra at 16-19. In
short, there is no consent on the record and nor did his counsel on the record say that Mr. Hale
consented to his absence. Nor, pursuant to United States v. Rodriguez, 67 F.3d 1312, 1316 (7th Cir.
1995), does a supposed “waiver” by counsel of the right to be present impute to the defendant. If
reasonable jurists could decide in Rodriguez that a purported waiver by counsel is inadequate,
reasonable jurists could disagree or debate that it was adequate here.
As for the lower court’s view that a second waiver also applied – that Mr. Hale is barred from
raising the claim now because he did not do so on direct appeal (Doc. # 50, 7/22/10 Opinion and
Order at 76-80) – reasonable jurists could disagree with or debate this as well. First, a reasonable
jurist could find that Mr. Hale has indeed shown that, in light of all of the evidence, including
specifically the copious amount of unheard evidence that Judge Lefkow was not the December 5,
2002 “Jew rat” that was the subject of any conceivable solicitation, that it is more likely than not
that no reasonable jury would have convicted him of soliciting and obstructing her and thus that he
is actually innocent. While the lower court disagrees (id. at 77), a reasonable jurist could disagree
with or debate the lower court. It may even be true that most reasonable jurists would agree with the
lower court but so long as any could disagree or debate the matter, review by this Court is mandated.
There is plain, solid evidence that Judge Lefkow was not “the rat, Jew rat”on December 5, 2002 and,
had a jury, any jury, known that, it is indeed more likely than not that it would not have convicted
Mr. Hale or so a reasonable jurist could find.
Likewise, a reasonable jurist could disagree or debate that there was no cause (Doc. # 50,
7/22/10 Opinion and Order at 77-80) for Mr. Hale not bringing the claim on his direct appeal. First,
and most importantly, the record simply does not show, as the lower court would certainly agree, that
Mr. Hale’s absence from individual voir dire was in fact involuntary as Mr. Hale argued it was. (Id.
at 78.) Thus a reasonable jurist could find that, because it was not clear from the trial record that his
absence from individual voir dire was involuntary, and because the Court of Appeals obviously does
not take testimony to resolve such evidentiary issues, this Court could not have decided Mr. Hale’s
29


Case: 11-3868 Document: 9-1 Filed: 02/13/2012 Pages: 31
absence from voir dire claim on direct appeal. Thus a reasonable jurist could find no waiver here.9
Second, a reasonable jurist could find that the lower court held Mr. Hale to a higher burden
for cause than is necessary under the law when it comes to him not having the voir dire transcripts
when he filed his direct appeal. (Id. at 78-80.) He was pro se, at a new prison without much of his
legal property, and was laboring under the incorrect information provided to him by his post-trial
counsel. Nor was Mr. Hale aware that anybody had ordered the transcripts when he received them.
In any event, as alluded earlier, his Fifth Amendment claim of a violation of his right to be present
at all critical stages of his trial depended on evidence (his involuntary absence) outside the record
on appeal and thus could not have been brought on direct appeal or so a reasonable jurist could find.
By means of analogy, if a claim of ineffective assistance of counsel is properly brought pursuant to
a § 2255 motion because it relies on evidence outside the trial record, so should an absence from voir
dire claim be properly brought pursuant to a § 2255 motion when it too relies on evidence outside
the trial record or so a reasonable jurist could find.
Conclusion
Mr. Hale has made a substantial showing of the denial of his Sixth Amendment right to
effective assistance of counsel and his Fifth Amendment right to due process because reasonable
jurists could disagree with or debate the lower court’s resolution of these issues or conclude that the
issues are adequate to deserve further proceedings. See Miller-El v. Cockrell, 537 U.S. at 337-38.
Mr. Hale’s case is not “clearly unmeritorious” Buie v. McAdory, 322 F.3d 980, 981 (7th Cir. 2003).
He has far exceeded the good faith and absence of frivolity requirements for a Certificate of
Appealability (see page 2, supra). Mr. Hale thus respectfully requests the issuance of said certificate.
DATED this 13th day of February, 2012.
Notably, it is untrue that Mr. Hale ever attempted to “amend his § 2255 motion” and nor is it true
that his original argument was “that the record was devoid of evidence showing that he, or his counsel,
consented to his absence from voir dire” (emphasis deleted). (Doc. # 68, 10/27/11 Opinion and Order at 20.)
Rather, his claim in his § 2255 motion has always been that his Fifth Amendment right to be present at allcritical stages of his trial was violated when he was excluded from in-chambers individual voir dire and hisargument is that any “consent” by his counsel to his absence was not adequate to waive his presence.
30


Case: 11-3868 Document: 9-1 Filed: 02/13/2012 Pages: 31
Respectfully submitted,
s/Clifford J. Barnard
Clifford J. Barnard
Colorado Bar # 8195
Attorney for Petitioner-Appellant Hale4450 Arapahoe Avenue, Suite 100Boulder, Colorado 80303
Telephone: (303) 546-7947Facsimile: (303) 444-6349Email: cliffbarnard@earthlink.net
CERTIFICATE OF SERVICE
I hereby certify that on this 13th day of February, 2012, I electronically filed the foregoing
Appellant Hale’s Petition for Certificate of Appealability with the Clerk of the Court using the
CM/ECF system which will send notification of such filing to the following e-mail address(es):
A.U.S.A. Manish S. Shah
manish.shah@usdoj.gov
and I hereby certify that I have mailed or served the document or paper to the following non
CM/ECF participant in the manner (mail, hand-delivery, etc.) indicated:
Matthew Hale via U.S. Mail
Register # 15177-424
U.S.P.-Florence ADX

P.O. Box 8500
Florence, CO 81226-8500
s/Clifford J. Barnard
Clifford J. Barnard
Attorney for Petitioner-Appellant Hale

Monday, 28 May 2012

A Short Response to "A Critique of Ben Klassen's Creativity Ideology and Its Relation to Other Religions"


(Aryan Nation/ Critique of Creativity Link)
http://www.aryan-nation.org/a_critique_ ... ivity.html









      A Short Response to "A Critique of Ben Klassen's Creativity Ideology and Its Relation to Other Religions"
by Reverend Matt Hale, Pontifex Maximus Emeritus
Ecclesia Creatoris (the Latin name of our church founded as the Church of the Creator in 1973)


Dear Brothers and Sisters! Let me first thank the Aryan Nations for giving me the opportunity to respond to the aforementioned critique by the unknown author, a critique that raises a number of claims about and challenges to my religion, Creativity, that deserve and warrant a response. I do so in the spirit of Racial Loyalist brotherhood, a spirit that those who know me know I have always maintained for all Racial Loyalists of whatever religious faith. In a sense, that spirit is the best response to the critique of all, for if Creativity were really what the critic maintains that it is, namely a religion that is basically crude, totalitarian and oppressive in nature, I as a believer in Creativity would not have the appreciation and love for all Racial Loyalists that I do.

The critic is an intelligent person, but he presumes many things about Creativity that are untrue in nature and that are in fact directly violative of our Creativity religion. I summarize them as follows:

1) That Creators in any way consider themselves "atheists" and/or "materialists".



2) That Creativity means to ever oppress any other religion subscribed to by White people.



3) That Creativity's disdain of belief in an "afterlife" somehow renders Creators less moral and courageous than other people.



4) That Creativity means to make White people less religious.





Any reader of the critique will realize these are the underpinnings of the critic's entire argument that Creativity is somehow harmful to or a danger for our beloved White people. If though the premises of the critic listed above happen to be erroneous as I hope to show briefly, I submit that his negative conclusions about Creativity are in error as well.



The first problem with the critique is that the critic never defines what "spirituality" means and yet it is central to his entire argument. What exactly is he talking about? He seems to imply that spirituality and materialism are opposites and thus can only be for one or the other. Is one required to believe in a deity in order to be "spiritual"? If that is the case, we Creators would admit that indeed, we are not spiritual and in fact disdain "spirituality". Since, on the other hand, we Creators do deeply believe in many non-material values such as honor, love, hope, loyalty, and others, if these are indeed spiritual values -- and many people would say that they indeed are -- we Creators, submit that we are as spiritual as anybody. (We have a print newsletter, for example, called Creator Spirit.) The critic is thus in error that Creativity reduces everything to physicality; rather, we Creators simply believe that physical world is that from which all else follows. Instead of believing in a "supernatural" -- something we deem to be a contradiction in terms -- we believe that everything is in nature. That though does not mean that we disdain the nobel values that I have indicated; quite the contrary is in fact the case. The fact that we Creators consider Creativity a religion at all shows that we disagree with the critic's premise that we are somehow opposed to higher values. Rather, we simply do not hold that one must believe in a god or gods or a personal "afterlife" -- another contradiction in terms -- in order to possess such higher values. Race is thus the foundation of our values, true, but it is not the end of them. For example, the 14th Commandment of our Creativity religion states, "Throughout your life you shall faithfully uphold our pivotal creed of Blood, Soil, and Honor. Practice it diligently, for it is the heart of our faith." We Creators thus believe in our race, the earth, and living an honorable life. None of these things requires believing in a supernatural any more enjoying the Yuletide season requires believing in Santa Claus.



The critic also seems to complain about the fact that Creators wish to convert all White people to Creativity. This though is hardly unusual: Christians wish to convert non-Christians, Muslims wish to convert non-Muslims, and on and on. His inference though that we would ever seek to convert our White people by force is totally false and reveals a general lack of knowledge about our religion. The critic does not seem to be aware that our Founder was fond of quoting the philosopher Voltaire's famous statement, "I disagree with what you say but I'll defend to death your right to say it" when it came to the voicing of different beliefs and that our scriptures state that our religion is against any kind of coercion of anyone to believe as we do. Like Christianity today -- and presumably like the paganism of the critic -- we believing in persuading people, not in twisting their arms. It is from Ben Klassen that I personally learned the old saying, "A person convinced against his will is of the same opinion still." In fact, much of Creativity's disdain of Christianity, as outlined especially in The White Man's Bible, is based upon the fact that Christianity historically used a considerable amount of physical force and other oppression in an effort to make small people conform to that particular religion and it's various sects. Thus the critic's claim and concern that Creativity's widespread triumph would mean the oppression of those who disagree with it is simply untrue and is in fact anathema to what we believe in. As far as we are concerned, a man can worship a rock if he wants to. We will try to persuade him otherwise of course but in the end it remains up to him.



The critic also errs in his claim that Creativity has no regard for ethnic distinctions within the White Race. Instead, we simply say that the best interests of our race as a whole must come first. It is Creativity more than any other religion, ideology, or philosophy that took the Second World War to heart: never again must White people wage war against one another due to ethnic differences or rivalries. Our racial tree has many limbs and branches but all are part of and serve that tree. Thus Creativity does emphasize our White Race over that of any particular ethnicity while rejoicing in the uniqueness of them all. Hence Creators everywhere rejoiced in the re-unification of Germany when it occurred, for example, but at the same time urged the greater unity of all White people for our entire White Race. Yes, Creativity is a racial religion through and through but isn't that about time? What Ben Klassen realized is that our race had reached such a threat to it's existence that only a thoroughly racial religion that puts the minds of our people squarely on it could save it. Can anyone really say that Ben Klassen has been proven wrong in that regard? We today have a mulatto president of the United States who was put in office by millions of White Christians. It is precisely because Creativity is indeed a totally racial religion that there is no way that such a thing could have ever happened were those Christians instead Creators.



What is also remarkable is that the critic, in his ancillary praise of theism of apparently any kind, never bothers to examine whether the idea that there really is a god or gods is in fact true. Instead, the critic is basically saying that we should believe in a god or gods whether they really exist or not. What about the truth? Doesn't it matter? Are we instead to adopt belief systems based on speculation rather than what we think is actually real? Creativity believes that reality should indeed matter and that is what guides Creators in their lives. Creativity says that we who believe in it are willing to believe in anything provided that sufficient evidence has been presented so as to validate the belief in question. We submit that, that is not much to ask. The critic would have us place our faith in that which we can't see (gods) over that which we can see (our race). We think the reverse makes more sense. On a related note, the critic repeatedly attacks atheism and says that Creativity is "atheistic" without realizing that Creators don't consider themselves atheists due to the fact that "atheism" only indicates what a person doesn't believe in rather than what he does. This too shows that the critic is not very knowledgeable about the religion he is critiquing. Since we hold that the idea of a "god" is essentially devoid of meaning, we see little reason to describe ourselves by a lack of belief in such.



Nor apparently is the critic knowledgeable of who the Mennonites were, when it comes to his unfortunate insinuations about Ben Klassen's ancestry, as he complains that Ben Klassen apparently did not look "Ukrainian" to him. Well, the simple answer is that Ben Klassen wasn't a Ukrainian. The Mennonite community that he was born into in the Ukraine were Germans as most people who know anything about the Mennonites would know. They were welcomed into the Ukraine by the Tsarist government to farm the land along with other German settlers. The critic apparently also did not read Ben Klassen's autobiography, Against the Evil Tide, in which he set forth his family tree for several centuries and puts to rest any aspersions along the lines of the critic. Nor did Ben Klassen even have the physical characteristics that the critic claimed he had. Notably, the critic apparently did not know that Ben (Bernhardt) Klassen as a young man living in Canada applied for and was granted in 1939 permission to study engineering in the Third Reich, this being written about in his first and the seminal book of our religion, Nature's Eternal Religion. Since Jews were banned from German universities at that point, that obviously would not have been possible were he indeed jewish.



Does anyone really think that the Nazi government would allow a Jew to enter the country and study engineering there in 1939? I have met many people who met Ben Klassen and none of them ever had the opinion about his ancestry that the unknown critic claims to have. It is unfortunate that he felt compelled to launch such a low blow personal aspersion upon the man in an effort to buttress his critique. Notably, Ron McVan, who he quotes several times on other points, worked side by side with Ben Klassen for several years. Obviously he didn't doubt his ancestry either.



The critc also claims that Creators attack the very idea of White people having religious beliefs and yet the very first pages of Nature's Eternal Religion state that the intent of Creativity is to make our White people more religious. An anti-religion religion is obviously a contradiction in terms and yet that is what the critic would have people believe is the case here. Ben Klassen thoroughly discusses in our books why Creativity is indeed a religion. The fact that we place supreme value in our race instead of in a speculative deity or deities does not negate our religiosity. Again, we have to wonder just how informed the critic is of Creativity.



Of greater value is the critic's philosophical discussion of the origin of the universe that takes place in the closing pages of his critique. The basic error though is the assumption that there has to be an origin in the first place. Again and again the critic makes the error that physical matter in the universe had to come from some non-physical source. It didn't. Rather, matter cannot be "created"; instead, matter can only change form. Furthermore, Creativity submits that there can be no such thing as thought without a brain. In other words, if thought is to be possible, there must be some kind of mechanism to make it possible. This should not be a controversial proposition. You and I think because we have brains. If our brains were to be damaged in some way, our thought would be damaged too regardless of whatever our alleged "souls" had to say about it. Hence when we die and there is no more functioning brain, there can be no more thinking nor an afterlife where people can think either. Hence were a god or gods to exist, they too would have to have a brain in order to think. The basic error of non-physical theism is that it insists that somehow a non-physical world can somehow control the physical world from whence unknown. Creativity says that the reverse is more likely the case. In any event, Creativity is less concerned with whether there could somehow be a "beginning" to life (life likely in fact always existed) than with whether our beloved White Race will survive the existential threat upon it now, today. As our great Founder said, sure, we can debate how many "angels" can dance on the head of a pin as monks did in the Middle Ages but really, we have better things to do!



When we hear the strains of Mozart, it is because we have brains, physicality, that we can discern and pronounce that they have beauty. When we are embraced by our loved ones, it is because we have nerves, physicality, that we feel joy. When we fight for a future for our White people, it is because they have real, tangible, physical being that we can know whether that future can indeed be ensured. There is no shame in that and nor do Creators feel that they are missing out on anything by pronouncing our love for our White people our religion without supernatural thoughts. Nor do we need some kind of assurance that there is another life when we die for us to do our duty in this one. Indeed, it is the Creators, who have less fear of death because as our Founder quotes of the Roman philosopher and statesman Cicero in The White Man's Bible, we view death as merely a long sleep from which we never wake. We fear death no more than we feared being born. All individual lives come and go but the life of our race remains. I do not believe anyone can say that I myself held back from doing my personal duty for our cause due to any fear of death and it is my hope that our critic and all of our Brothers and Sisters for that matter may likewise experience that peaceful state of mind by actually reading The Books of Creativity.

Rev Matt Hale (Jan 2012)

Pontifex Maximus Emeritus                       

Church of the Cr**tor



 note: Any typographical, spelling, or other errors are that of the transcriber, not that of Rev Hale.

Thursday, 24 May 2012

Simulacrum Candidus (The White Emblem) = Gang......... The U.S Department of Justice


Letter from,
U.S Department of Justice
Federal Bureau of Prisons

Subject : Correspondence with Inmate Returned

Your correspondence to the above named Inmate is being returned. This correspondence was not delivered to the Inmate because:

It contains a photo of gang paraphilia.



The rejection of this correspondence is in accordance with the Federal Bureau of Prisons policy on "correspondence" as published in title 28 code of Federal Regulations, part 540 and in the Federal Bureau of Prisons program statement on correspondence. You have the right to appeal this rejection by writing the Warden in care of the above address. The Inmate to whom you addressed your correspondence has been notified that this correspondence has been returned to you and of his or her right to appeal the rejection.



 D.W. Stamper,
Associate Warden DWS/rjm





Dear Mr. Stamper,
I have received your letter with the subject titled "Correspondence with Inmate returned"
"This correspondence was not delivered to the Inmate because: It contains a photo of gang paraphilia"

This is in reference to the picture that I sent to Matthew F. Hale (15177-424/d)
I have included the offending picture in this letter for your recollection in this matter.

The symbol on the flag is
Simalacrum Candidus (The White Emblem in Latin).
Represents the Creativity Movement, formerly known as the Church of the Creator and World Church of the Creator

Creativity is a religion, not a gang. Creativity was recognized as a religion by the United States District Court for the Eastern District of Wisconsin in Peterson v. Wilmur Communications (205 F.Supp.2d 1014) (2002).

Creativity is a religion based on the laws of nature, on the experience of history, on logic and common sense.

Thank you for taking the time to read this.

Brother Smith
TCM Toronto





U.S DEPARTMENT OF JUSTICE

This is in response to your correspondence regarding a picture you had attempted to send to inmate Matthew Hale, Register Number 15177-424 presently confined at the United States Federal Penitentiary, ADX, Florence, Colorado. You state the picture depicts the Creativity Movement, formerly known as the Church of the Creator and World Church of the Creator. You state Creativity is a religion based on the laws of nature, on the experience of history, and on logic and common sense.

This picture was rejected per 28 CFR 540.14 (d) (8) as contraband because it is material that can reasonably be expected to adversely affect the security, safety and orderly running of this institution.

I trust this addresses your concern. Please contact me if I can be of further assistance.

Sincerely,
D. W. Stamper
Associate War