Petition for a Rehearing

M. Ismail Sloan, being duly sworn deposes and says:

1. I make this affidavit in support of a petition for a rehearing to reinstate my appeal which was dismissed on the grounds of untimeliness. I believe that this matter must be decided by the court, rather than by a mere clerk, especially since I am raising a constitutional due process issue. I believe that not only should my appeal be reinstated but that the child custody petition filed by Charles Roberts which brings this matter before the court should be dismissed with prejudice and Mr. Roberts should be remanded to the custody of the Department of Corrections on kidnapping charges.

2. First, I must explain that I am fully aware that this court derives its jurisdiction from the filing of a notice of appeal and that if a notice of appeal has not been timely filed then the court has no jurisdiction. Having said that, I would like to point out that I have filed a total of four notices of appeal in this case. Two were deemed to be too early and the other two were deemed to be too late.

3. This comes on top of a clear pattern of deviousness and dishonesty on the part of counsel in the court below and on the part of the lower court judges. The initial judge in this case, Judge Janow, procrastinated and delayed for a period of five years before making an appealable decision. The only reason that he finally did enter an appealable order when he did was that I had filed a petition for a writ of mandamus and prohibition against him, which, incidentally, is still pending, because no judge has agreed to hear it.

4. After Judge Janow finally made the decision which I have known for the entire five years that he was going to make, the case went to his former law partner, Judge Gamble, who has refused to recuse himself from this group of cases even though he was suing me on behalf of another client up until his appointment as a judge in March, 1991.

5. Judge Gamble slipped into the same pattern as Judge Janow of procrastination, delay and refusing to enter an appealable order. Meanwhile, I had filed a petition for a writ of habeas corpus in December, 1990. When that petition was finally denied, I appealed to the Supreme Court of Virginia. I was scheduled to argue that appeal on about September 5, 1991 at 10:30 A.M. However, at about 4:30 P.M. on September 4, 1991, just 18 hours before I was scheduled to present this oral argument, I was arrested on a charge of taking a walk with my daughter across the back yard of my house which, according the Lynchburg Commonwealth Attorney, constituted a felony violation of 18.2-47, which is interstate kidnapping. I was arrested and spent 18 days in jail, during which time I lost my appeal before the Supreme Court of Virginia on the grounds of "lack of an adequate record".

6. When I finally got out of jail, Judge Gamble suddenly decided to accelerate matters which he had delayed for so long and three days later announced his decision that he was awarding custody of my daughter to Mr. Charles Roberts, a man who, by his own admission, had paid $12,000 to have my daughter kidnapped and brought to America.

7. However, Judge Gamble still refused to enter an appealable order. Finally, while waiting for this order, I received a summons from California dated November 7, 1991, stating that my other daughter, Jessica, who had been in Mr. Roberts' home for three and a half months, had been taken into foster care and would be put up for adoption if I did not go to California and contest the matter. This made it impossible for me to go down to the Amherst Courthouse on a daily basis and inquire as to whether any orders had been entered against me. However, I assumed that the opposing party would be required to serve me by mail with a copy of any adverse judgment.

8. I had several hearings in California regarding my daughter Jessica and, at the last one, the state offered into evidence a FAX dated about January 20, 1992 which the Alameda County Department of Social Services had received from Shelby Roberts which included an expurgated version of the letter opinion of Judge Gamble plus an unsigned proposed order bearing only the signature of Linda Groome which had been presented to Judge Gamble for his signature. I assumed that Shelby Roberts would have sent a signed order if one existed and therefore I concluded that Judge Gamble still had not entered a signed order.

9. What I now realize, however, is that Judge Gamble had signed an order but that he was concealing it from the parties, including Mrs. Roberts.

10. The problem is that in Amherst County there is no system for docketing orders. A judge can sign an order and just carry it around in this pocket, not allowing anybody to see it. There is no judgment roll or central record where one can look up and find conclusive proof as to whether an order has been entered or not. In short, there is no way for me or any other litigant to determine conclusively from a trip to the courthouse when and if an order has been entered.

11. The system in the Juvenile and Domestic Relations Court of Amherst County is even worse because there I am not allowed to see the file at all.

12. Since I had never received a copy of any order and had no way of knowing whether an order had been entered or not, I filed two notices of appeal in early February, 1992, appealing from orders which I had never seen but which I suspected might exist. These are the notices of appeal which are now deemed to have been filed too late.

13. I have now received copies of two decisions dismissing my notices of appeal, signed only by a deputy to the clerk of this court, Patricia Davis. However, I believe that this is not a routine matter and that it should be presented to a panel of judges. I therefore request a rehearing.

14. The reason that I say this is that my failure to file a notice of appeal sooner than I did is not the result of any error or neglect on my part. Rather, it is the result of deliberate malfeasance on the part of the lower court judge, who deliberately concealed the existence of the orders from me so as to prevent me from filing a timely appeal.

15. To explain this point, allow me to provide some of the history of this case.

16. I filed a petition for the custody of my daughter, Shamema Honzagool Sloan, on January 19, 1986. However, Judge Janow initially refused to hear the case. The matter dragged on until August, 1986, in spite of the fact that my custody petition was unopposed. Finally, I asked my attorney, Steve Martin, to appeal. My attorney agreed to ask the judge about this. Later, my attorney told me that he had conferred with the judge about this but that he could not appeal because the judge had not entered a final order.

17. Because of my inability to secure any judicial relief and still no prospect of a hearing in sight, I left the state with my daughter. Two days later, Mr. Charles Roberts, a non-relative, filed a petition for the custody of my daughter, which was then entertained on an expedited basis by the same judge who had refused to entertain my custody petition. Service was by notice of publication in the "Amherst New Era Progress", a local county weekly.

18. On September 5, 1986, nine days later, Judge Janow ordered that "Shamema Honzagool Sloan shall be seized wherever she may be found" brought to Virginia. Again, there was no hearing, no final order, and no way to appeal from this ex-parte decision.

19. Four years later, on October 7, 1990, my daughter was kidnapped in the United Arab Emirates and brought to Virginia by Mr. Charles Roberts, who then filed a second custody petition. Judge Janow immediately took jurisdiction over this case. At that point, Steve Martin, my attorney, filed a motion to dismiss the custody petition filed by Mr. Roberts on the ground that Mr. Roberts had acquired my child through self-help. In response to this motion, Judge Janow disqualified Steve Martin from acting as my counsel, without notice to me, on the grounds that, while this case had been going on, Steve Martin had become the law partner of Michael Gamble, who was suing me on behalf of his client, Alma Coates Dawson, a friend of the Roberts.

20. When I arrived in Amherst County a few days later in November, 1990, to recover my kidnapped daughter, Judge Janow personally ordered me to be arrested and held in jail. His arrest order was based on a capias which Judge Janow had carried around in his pocket for four years, not even allowing the Amherst County Commonwealth Attorney to know about it. I would probably still be in jail now, had not Judge Goad ordered me to be released three days later. Judge Goad died shortly thereafter. His vacancy was filled by Michael Gamble, who was appointed as a judge.

21. Again, Judge Janow resumed his strategy of refusing to hear the matter or to enter a final order so that I could appeal. He refused to schedule a hearing until February 4, 1991, meaning that my daughter would continue to be held prisoner by her kidnappers until that time. When February 4 arrived, he stated on the record that he was not going to enter a final order then because he did not want this case to be appealed. He then adjourned the matter for another three months.

22. I appealed anyway, but my appeal was dismissed for lack of a final order. See Sloan v. Amherst Department of Social Services (unpublished May, 1991 decision by the Court of Appeals dismissing my appeal). This was reported in "Virginia Law Weekly", June 3, 1991, page 12.

23. Finally, Judge Janow entered an appealable order on July 17, 1991, by which time my kidnapped daughter had been held a prisoner in the church for more than nine months. It is clear that the only reason that Judge Janow issued an order at that time was to get out from under a petition for a writ of mandamus which I had filed against him for refusing to hear and decide these cases.

24. The case then went to Judge Michael Gamble, the former law partner of Judge Janow.

25. Again, we had the same problem. Judge Gamble said that he had a heavy schedule and could not hear the case. However, there were new problems with Judge Gamble which I had not experienced with Judge Janow. In particular, Judge Gamble issued a standing order not to allow me to file any papers with the clerk in this case. Ever since my daughter had been kidnapped, I had filed a constant stream of applications and petitions to the court to get her released. Judge Gamble ordered that I should not be allowed to file any more papers in this case. Any documents which I did file were returned to me in the mail. Any letters I wrote to Judge Gamble were returned to me unread.

26. As far as I know, this is illegal. A judge simply cannot order that a particular litigant not be allowed to file papers. See I.B.M. Corp v. Edelstein, 526 F.2d 37, 45 (2d Cir. 1975). Nevertheless, this is what Judge Gamble verbally ordered, over my vehement protests.

27. In late September, 1991, Judge Gamble wrote a letter opinion in which he awarded custody of my still nine-year-old daughter to Mr. Charles Roberts, the man who had paid to have her kidnapped. I was never informed of this, nor was my attorney at the time, James Massie. The way that I found out about this letter opinion was that, two or three weeks later, I went to the clerk's office and inquired if a decision had been made. The clerk said that he was not aware of any decision and there was nothing in the clerk's file. However, the clerk went and spoke to the judge. I sat around the clerk's office and the courtroom for about two hours, waiting for the result. Finally, the clerk, Roy C. Mayo, informed me that Judge Gamble had made a letter opinion and, after some discussion, had finally agreed to allow me to have a copy of his letter opinion.

28. This, however, was not a judgment. It was only an opinion. I still was not allowed to appeal.

29. I thereafter inquired from time to time as to whether a final appealable judgment had been entered. Meanwhile, I received a summons from California dated November 7, 1991, stating that my other daughter, Jessica had been taken into foster care and would be put up for adoption if I did not go to California and contest the matter. This made it impossible for me to go down to the Amherst Courthouse on a daily basis and inquire as to whether any orders had been entered against me. However, I assumed that the opposing party would be required to serve me by mail with a copy of any adverse judgment.

30. When I never received a copy of any judgment, I eventually filed two notices of appeal just in case a judgment had been entered against me.

31. The first time I ever saw a copy of one of the judgments against me was in April, 1992, when Linda Groome included a copy in her motion to this court to dismiss my appeals. I still to this day have not seen a copy of the other judgment.

32. I have since learned that in December, 1991, my second attorney, James Massie, was disqualified by Judge Gamble from representing me. Mr. Massie had been my court appointed counsel, replacing Steve Martin, who had originally been my paid counsel, until I ran out of money.

33. Again, this disqualification of my counsel had taken place without any notice to me. Mr. Massie, of course, knew that I intended to appeal any adverse judgment. Everyone familiar with this case knows that there is nothing more important to me than getting my kidnapped daughter back. However, Mr. Massie could not file a notice of appeal, because he was no longer my lawyer, having been removed by Judge Gamble.

34. Again, I consider this to be illegal. I do not believe that Judge Gamble had the legal authority to remove my court appointed lawyer from the case, especially since his only reason for doing so was to stop my appeals.

35. In short, the reasons why I did not file a notice of appeal sooner are that (1) a standing order was issued that I not be allowed to file papers with the clerk, (2) I was not allowed to know about the final judgment of the court and (3) my court appointed counsel was disqualified and removed from the case before he had a chance to file a notice of appeal.

36. These circumstances raise a constitutional due process issue. The Fourteenth Amendment guarantees that I cannot be deprived of liberty without due process of law. Here, I am being deprived of my constitutional right to raise a family, because my daughter has been given to a criminal kidnapper who paid twelve thousand dollars to have her abducted. Where is the due process of law? In fact, there is no due process of law in Amherst County. The judges there just make up their own law as they go along.

37. The general rule in other states with which I am familiar is that the time to file a notice of appeal commences with the service of the judgment on the adverse party with notice of entry of the judgment. This is the only fair and sensible rule. Otherwise, as here, a judge can frustrate an appeal simply by concealing an adverse order from the defeated party.

38. I have checked the law of various states and in each state I have found that there is a rule of some sort that a defeated party must be given notice and, if he does not receive notice, remedies are available. See e. g. Williams v. Forbes, 550 N.Y.S.2d 903 (N.Y. 1990); Custom Moulders v. Roper Corp, 401 S.E. 2d 96 (N.C. 1991); Shouse v. State, 376 S.E. 2d 911 (Ga. 1988). In the latter case, the Georgia Court of Appeals ruled that the failure to provide the pro se appellant with notice, thereby depriving him of his right to appeal, was a matter of "constitutional dimensions".

39. My case raises even greater questions of a constitutional nature because, in my case, not only did Judge Gamble enter an order without notice to me, but he also almost simultaneously removed my attorney from the case without notice to me. Since I was in California at the time, there was no way for me to be appraised of the situation until long after thirty days had elapsed.

40. A further factor is that I have actually filed four notices of appeal in this case (perhaps more). However, two were deemed to be premature and the other two were deemed to be too late. I am including in this a notice of appeal I filed in the Supreme Court of Virginia regarding the denial of my petition or a writ of habeas corpus, plus the notice of appeal which was dismissed by the Virginia Court of Appeals in May, 1991.

41. The Supreme Court of Virginia has held that the filing of a notice of appeal too soon in a child custody case does not deprive the appellate court of jurisdiction. Lackey v. Lackey, 278 S.E.2d 811 (Va. Sup. 1981). That has also been the ruling in other states which have considered this issue. See e.g. Spano v. County of Onondaga, 565 N.Y.S.2d 665 (N.Y. 1991).

42. I submit that somewhere in between these four notices of appeal which I have filed I should be allowed to have appellate review of this case, especially in view of the Draconian nature of the judgment below. The effect of the judgment of the court below is that my daughter no longer has a father, no longer has a mother, no longer has a grandmother, no longer has three brothers and no longer has three sisters. My daughter is now the personal property of a crazy religious fanatic named Roberts and his 350 pound wife, to do with her as they please.

43. To give you an idea of how entirely illegal the procedure adopted by the court below has been, the decision below also dismisses "in prejudice to" any claims which the natural mother might have for the custody of her child. However, the mother, Honzagool, has been at all times in the tribal area of Pakistan on the border with Afghanistan and has never been served with process. Judge Janow appointed an attorney named Lisa Schenkel to represent the mother, but the mother was never consulted about this and never signed a consent form consenting to be represented by Ms. Schenkel. In reality, Ms. Schenkel served as co-counsel and an assistant to Ms. Groome and they sat next to each other throughout the hearings. We have no way of knowing whether the mother is even aware of this case or of the judgment entered by Judge Gamble. We can be certain, however, that if the mother can ever somehow make it to America, she is not going to consider herself bound by Judge Gamble's decision.

44. It must be recalled that my daughter got to America by virtue of being kidnapped by the Roberts. Prior to the decisions of Judge Janow and Judge Gamble, no state judge has ever ruled that a state can acquire jurisdiction over the custody of a child who got to that state only as a result of being kidnapped by a non-relative and brought there. Their rulings are clearly a violation of the Hague Convention and of the International Child Kidnapping Act, 42 U.S.C. 11601.

45. In a normal case, I would simply move for a rehearing and appeal from that. However, such a motion here would be futile. Judge Janow and Judge Gamble have been out to get me from the beginning. I have been told by sources within Amherst County that there is no chance at all that either judge would be prepared to entertain a petition for a rehearing. This is also demonstrated by the lengths to which Judge Gamble went to make sure that I could not find out about his judgment, so that I could not appeal.

46. I believe that this case raises constitutional questions which are beyond the competence of the clerk to decide. I therefore believe that this case should be presented to a panel of judges. I must also inform the court that I will attempt to appeal this dismissal of my notices of appeal to the Supreme Court of Virginia if this court does not reinstate my appeals. I will also even try to take this case to the United States Supreme Court, although I know that my chances of getting into that court are slim.

47. Finally, I should state that I have just skimmed over the facts which pertain to the jurisdiction of this appeal. There is much more to this case. Of particular importance is the fact, often misunderstood about this case, in that back in September, 1986, Judge Janow did not award custody to Charles Roberts. Rather, he ordered that "Shamema Honzagool Sloan shall be seized wherever she may be found". That was supposed to be a temporary emergency order. The plan of Judge Janow was that after Shamema was seized and brought to Virginia, he would then conduct a hearing to determine her custody. The purpose to this plan was that had Judge Janow awarded custody to Mr. Roberts outright in 1986, I could have appealed with a good chance of reversal, because Judge Janow has been reversed many times. For this reason, he deliberately couched his order in language which made it non-appealable. Then, he left the matter pending for four years, during which time both he and Mr. Roberts were actively trying to arrange the kidnapping of this child. It is submitted that all of this was illegal and inappropriate behavior for a judge.

WHEREFORE, it is respectfully prayed that this petition for a rehearing be granted and that, upon rehearing, this appeal shall be reinstated, and the custody petition filed by Mr. Charles Roberts, a non-relative, should be dismissed with prejudice for lack of standing and lack of jurisdiction.

__________________________
M. Ismail Sloan
917 Old Trent's Ferry Road
Lynchburg, VA 24503

Sworn to Before me this 2nd day of July, 1992.

________________________ NOTARY PUBLIC

I hereby certify that on July 2, 1992 I mailed a true copy of this petition for a rehearing to the following: Linda Groome, Ed Meeks, Lisa Schenkel, James H. Massie III and J. Thompson Shrader

______________________
M. Ismail Sloan