Woods, Rodney Lewis

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_ MAR 03 2015

RoDNEY L.~ woons, ) ‘

Petit:lon_er, ) Ab@ A@@St@, Cl®l`k

vs. ) wRIT No, w89-A4738-P(A)

s'c`ATE oF TEXAS, )

'R`espondent. ) `

' PETITtoN§`a"s` "RE?LY' 'ro sram's RE's?oNsE FoR' "

. WRIT OFv ,HABEAS CORPUS `

Comee now, petitioner Rodney L. Woods (Pro-se in this matter) and respectfully

submits this reply to the State's Response of petitioner's state rights here

in Texas, and his United States Constitutional Rights being violated'.

JURISDICTION

' Petitioner 'Wood's, request this Court' to Vacate his Conviction and or

,Sentence in the above captioned case (Criminal) pursuant to the Texas Rules of

Procedure l='or Post-Conviction Remedies. Petitioner asserts the conviction and

sentence in this cause: was in violation of the Fifth~, Sixth and Eourteenth _

Amendments to the United States Constitution.

STANDARD OF REVIEW

The standard of review for a pro-se complaint is to be considered liberally.

If this Co\"_lrt can reasonably read this pleading to state a valid claim, this

Court should grant this action despite any failure to cite proper legal

authority, confusion of legal theories or poor syntax. Haines v. Kerner, js/Ol»

U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972).

BACKGROUND

The True Bill Of indictment filed on November 10, 1989, under Cause No~. F-

89A4738-QP - alleges on or about November 3, '1989, petitioner Woods, did

lunlawfully‘, knowingly and intentionally deliver a simulated ` controlled

substance, to-wit: a white powdery substance, to D.L» GLAGGET, hereinafter

called the complainant , and said defendant did, expressly "and in a manner that

would lead a reasonable person to believe that the substance is a controlled

substance, represent the said simulated controlled substance to be controlled

substance, to-wit: COCAINE...

Petitioner Woods originally pleaded not guilty to said offense under Cause

No. F-89A4'738-QP.

However, upon the advice of counsel, on April 27, 1990, petitioner pled

guilty to unlawful PDSSESSION; of 'a»simulated substance, pursuant to WAIVER OF" 14

JURY/FP.L<)NY PLEA oF cuIL'rY/NoLo coN'rENnERE/mnlc'lmr/INFQRMATION. (see mmIBIT "- `

A, attached 'to and enclosed in the original post-conviction motion and

memorandum of law in support). g l

Also, on January 31, 1990, a True Bill Of lndictment was filed under Cause

No. F-9029380-UP - alleging on or about November 24, 1989, petitioner Woods,

in the County of Dallas and State of \Texas, did unlawfully, knowingly and

intentionally possess with intent to deliver, a controlled substance, namely:

Cocaine, in an amount by aggregate weight including any_adulterants or dilutants

of less than 28 grams.¢..

Petitioner originally pleaded `not g\>n-:l.ltyl to said offense under .Cause No.

F-9029380-ur. '

Following the advice of counsel,' petitioner Woods proceeded to trial where

in April 1990, a jury found petitioner guilty of said offense contained in the »`

State ' s indictment.

Defense counsel for petitioner failed to pursue a direct appeal.

ARGUMENT

Cause No. W89-A4738-P(A):

The state's response contends petitioner may not avail himself of his

constitutional right to challenge a f\mdamental miscarriage of justice, because

is not currently confined in the state of Texas.

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zl';\‘

Next, the state assert a doctrine of laches should bar ~ this court from

reaching the merits of petitioner Woods claim[s].

lt is well settled that a petitioner must exhaust all available state court

habeas corpus remedies before requesting a federal court to consider the merits

of his claims. 28 U.`S.~C. §2254(1>) and (c). The exhaustion requirement is

designed to "prot.ect the state court's role in the enforcement of federal law

and prevent the disruption of state judicial proceedings." Ro`se v. Lund , 455

U.S. 509,` 518, 71 L. Ed. 2d 379, S. Ct. 1198 (1982). In order to exhaust, a

petitioner must "fairly present" all of his claims to the highest state court

for review. Shute v. State of Texas, 117 F.3d 233, '237 (5th Cir. 1997)`;4 l_)_e_t_§:£

'v. Collins, 985 F.2d 789, 795 (5th Cir. 1993); Richardson v. Procunier,"762`F'.'2d

429, 430-31 (5th Cir. 1985).

A habeas corpus petitioner may lsatify this requirement by presenting both

the factual land legal substance of his claims to the sentencing court in an

application for a writ of habeas corpus pursuant to the article 11.072, Texas _

Code of Criminal Procedure. Alternatively he may file an application for habeas

'* corpus relief in' the convicting court pursuant lto article V §8 of the Texas

Constitution.~. See ~Rodriquez v. Court of Appeals Eight vSv.zpreme vJudicial District, d

769 S.W.an 554, 557 ('l’ex. Crim. App‘. 1989).(en banc) (holding that article V

58 of the Texas Constitution, combined with article 11.05 of the Texas Code of

Criminal Procedure', confers general jurisdiction in the district court to issue

writs .of habeas corpus, even in cases where the district courtjhas no other

jurisdiction over the matter in controversy).~ ` In theil':"event the district court

denies the habeas petitioner has a right to appeal to the Texas appellate l

courts and to petition the Te_Kas Court of driminal Appeals for discretionary

review.

The state urges this court- to hold only a federal court can issue a writ

of habeas corpus, because petitioner is in custody of the United States

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government ¢`

Petitioner woods request this court to determine whether the limited States '

Supreme Court is correct is addressing "Substance over Form" and "Fairness over

Finality" especially where it pertains to a violation that is constitutional

in -magnitude¢- Reed vs Farley,f' 512 U.~‘S.~ 339 (1994) recogniaed,' an habeas review

is available to check violations of federal laws when the error "qualifies as

""a fundamental defect which inherently results in a complete miscarriage of

josaoo;"'" coming mll,v'.-' uniooa`_sraoeo,- 368 u.~s.= 424,= 428 (1962)`.»-

The Sixth Ame'ndment' guarantees the right to competent counsel not just at l

trial,~ but during all "critical stages of the prosecution.~‘" United States. v.‘

»woao,' aaa u.-:s. 218. 237,- 18 L.' Ed.~ 2d 1149,; 87 s.~‘ cc.» 1926 \(1'967).»

'~"A critical stage is one where potential substantial prejudice to the

defendant`ls right adhere in the ¢;a' confrontation [of the accused by the l

prosecutionj and where counsel"s abilities can help avoid prejudices" ' §p'_l_eg§p_

v_; mabamo, 399 u.-'s; 1, 9,,< W,- 90 s. cc.-'- 1999 <1970)'.~- `

The `U._S. Supreme Court's_ decisions in Lafler v. Coo er,~- 132 S. Ct. 1376,

1387, 1-82 L. Ed. 2d 398 (2012)'and Missouri'v.' F§ye, 132 S. Ct. 1399, 1406, _1_§_2_

L. Ed.» l2d 379 .(2012) emphasized ineffective assistance of counsel claims runs

throughout the plea bargaining process.

Defense counsel - Kenneth weatherspoon, (State Bar No. 21004100) represented

petitioner woods in cause 'No. F'-aQAuaa-QP - unlawful neuvory of A simulated

Controlled Substance. Had counsel - weatherspoon thoroughly investigated the

state's. evidence, states's lstatut~e, the plea agreement and interviewed the

state's witnesses, then a different result would have came about.~ A simulated n

controlled substance is get a controlled substance, it is simply a substance

that is wrongly represented to be a controlled substance`. As the Texas statute

illustrate, the Term "counterfeit substance" has _a defended, well~established

meaning distinct from the definition of a "simulated" or "limitation" controlled `z__..

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substance offense. _Therefore, petitioner Woods respectfully request this court

to apply this definition, rather than a definition based on the plain meaning

of the term "counterfeit." See __M§_gnano Co. v. Hamilton, 292 U.S. 40,v 46-47,; _7_§

L. Ed. 1109, 54 s. cc; 599 <1934§. n `

Texas provides a separate offense for the possession or delivery of a

d simulated controlled substance uNIFoRM comoLLEn summers AcT §405 (1994);

TEXAS HEALTH & SAFETY CODE §482.002. Under Texas law, a "simlated controlled

4snbst'ance" is defined as " a substance that is purported to be a controlled

substance, but is chemically different from the controlled substance it _is

purported to be."' TEXAS HEALTH & SAFETY CODE §482.001_.(4).: Thus, _a simulated

controlled substance’is NUT a controlled substance. 4 n

Under Criminal vLaw 12 §46.4 - Counsel duties in representing a criminal

defendant, counsel owes the client a duty of loyalty, a duty to avoid conflicts

of interest, a duty to consult with the defendant on important decisions, a duty

to keep defendant informed of important developments in the course of the

prosecution and a duty to bring to bear such skill and knowledge as well as

render the trial a reliable adversarial testing processu The objective standard

in this case, is whether defense counsel - Weatherspoon made such error[s] that

the attorney was ppg functioning as counsel guaranteed by the Sixth Amendment.

Lafler v cooeer, 132 s. cc. _1376, 182 L. Ed. 221 398 (2012) and msuouri v.

._EB,- 132 s. cc. 1399, 182 L. Ea. 2a 379 (2912). n v

The Sixth Amendment right-to-effective-assistance-jof-counsel guarantee

recognised "the obvious truth that the average defendant does _n_o_t_ have the

professional legal skill to protect himself when brought before a tribunal with

power to take his life or liberty." Johnson v. anerbst,‘ 304 U.S. 458, 462-63,

_sa s. cc'. 1019, 82 1.1.v Ed'. 2d 1461 (1938). "of.v alia the rigth shut on accused

person has, the right to be represented by competent counsel is by far the most

pervasive, for it affects his ability to assert any other rights." Cronic, 466

U.S. at 654. Thus, a defendant requires an attorney's guiding hand through

`~ ,:.§,_every stage of the proceedings against him.'

Generally, counsel's strategic decisions are afforded deference so long as _`

..they are based on counsel' "professional judgment." Stri'ckland _v. Washijton,

.~ _`1 .~_""~.:€1_:.`.,_"¢;'_§46`6 »U“.'S. 668» 680 (1984). However, if a purportedly tactical decision is no__t:_'4 `_

=':preceded by a reasonable investigation, then it is not sufficiently informed

»a.~and not entitled to the deference typically afforded counsel"s choices. See

` 11°.'¥.

“`;'1_searo, 130 s_. cc. at 3265.

1` The statutory definition of delivery of a (simul'ate`d) controlled substance

",`._» in ,'l‘exas, was defined by section 481 ‘.';112 `of the "Texas Health and Sefety Code,'*"

frencompasses activity that does not fall 'withi`n section definition of "drug

trafficking offense"" §ection 481 112 criminalizes the knowing manuracture,"_

1;~':§'€delivery ""or_ possession with intent to deliver a controlled substance. §ee TEXAS

-_~`HEALTH & SAFETY DE ANN.: §481“112(a) "Deliver" is defined, in relevant part, n

1 "as "to transfer, actually o_r constructively, to another a controlled substance,

' and it "includes offering to sell a controlled substance. In United States v..;":_. "_

ringonzales, 484 F. 3d 712`,l 714-15 (5th Cir. 2007) held that offering to sell a_ 1.

1 controlled substance lies eutside the section definition of "drug trafficking-

ix 'I~

offense," since the section 2L1. 2 "covers only the manufacture, import, export"'

distribution or dispensing of a controlled substance (or possession with the

':intent:' to do any of these things.") Garza-Lop`ez, 410 F. 3d at 274. Thus, by"

"Z `.“'.;inspecting the language of section 481. 002 defense counsel - _weatherspoon,

`:-‘prosecuting district attorney - Shannon Ross and or the trial court judge should "

923 have allowed,- presented or adjudicated petitioner' s cause in question under

~ »the" circumstances therein..

Counsel - weatherspoon has an obligation to protect his client's interest '

and _to zealously defend his client within the bounds of the law. Gideon v. w

-..

Wainr-ight, 372 U.S. 335, 83 S. Ct. 7921, 9 L. Ed. 2d 799 (_1963). ,1

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A reasonably competent attorney will attempt to learn all of the facts of ':'

the case, make an estimate of the likely sentence, and communicate the _“

`result of that analysis. The American Bar Asso'ciation` (A8A) standards statey

`y"there is no exhaustive list of defense counsel's obligations, [p]revailing:_

7norms of practice a re guides to determining what is reasonable." Stricklend

:v. .Washin ton, 466 U S. 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The pm

‘IV:ABA statndards indicate that "[d]efense counsel should not recommend to

l""`a defendant acceptatnce of a plea unless appropriate investigation and study

"tof the case has been completed. ABA standards for Criminal Justice Pleas

:.of Guilty, Standard 14-3. 2(b) (3rd Ed. 1999). "It is defense counsel's responsiblity

to investigate not only ths facts concerning the offense, but also facts

lthat go to the defendant's potentials entence, including his or her prior 1

',7record."1d., Commentary on Standard 14-3. 2 (b), p. 123. While counsel has

",;wide latitude to make strategic decisions, "etrategic decisions," "strategic

' jchoices made after less than complete investigation are reasonable precisely

.to the extent that reasonable professional judgments support the limitations

ton investigation." Strickland, 466 U. S. at 690-91. The type of legally erroneous

vadvice petitioner Woods stress--he received from defense counsel defense _¥1'

counsel ~ Weatherspoon is precisely the type _of' nformation that is likely

to impact a plea_ decision. The basis of petitoner argument is that: he would

,not have rejected an plea offer -and might have provided the required proffer

if he had been fully informed as to the' ‘extent of the montmental sentencing:

wrisk he was taking by continuing with the trial." Moreover, it can not be

.overlooked that petitioner entered into a plea to run concurrent with said

loffense in question, which speaks volumes about whether or Hnot- he would

`.} have accepted a plea, would the prosecution offer a plea nad would the court

'H`F laccept a plea.

o A defendant ’in a criminal proceedings has a right under the Sixth Amendment

_to effective assistance from his attorney at all critical stages in the

proceedings;., See e;g. §;ll v¢ Lockhart, 474 U;S. 52, 85 106 S. Ct. 366,

83 L. Ed. 2d 203 (1985); See generally'§§§§puri‘v.'FrXe, 132 S. Ct. 1399,

1605, 182 L. Ed. 24_§12 (ZOiZj,W;nd sentencing; see, e.g. Glover v.'United

§§§§§§, 531 U.S. 198, 202*04; 121'5;'Ct._6965 148 L. Ed. 2d 604 (2001);

Memge v. Rheg, 389 U¢S. 128;'134, 88 S. 'CT. 254, 19 L. Ed. 2d 335 (1967). b

_The attorney has an "overaching duty to advocate the defendant's cense."

Strickland, 466 U.S. at 688. l

-The Supreme Court's recent decisions`in McQuigg}n v. Pcrkins, (No. 12¢126)

(S. Ct, May 28, 2013), whico:held actual innocence if proved serves a gateway

through which a petitioner may pass whetherthe impediment is a procedural

bar or expiration of the AEDPA statute of limitations... And Trevino v.

I§§§g§, (No. 11-10189) (S; Ct. May 28, 2013) recognized that "procedurel`

default will not bar a post~conviction~court from`hearing a substantial

claim of ineffective aseistance of counsel..;"”

The Supreme Court held in Gall v. United'STates, 552 U.S. 38, 51, 128

S.‘Ct. 586, 169 L. Ed. 2d 445 (2007), we must first ensure-that the sentencing

court made "uo gggpificant procedural error,” ihcluding~"selecting a sentence

based on clearly erroneous'facts," or failing to adequately explain the

chosen sentence."

Pursuant to United Stetes~v.‘Tucker; 404 U;S. 443, 447, 92 S. Ct.-589,

591-92, 30 L. Ed. 2d 592 (1972), held when errors of this nature are alleged

to have effected the defendant's~sentence,-we review the lower court record

to determine whether-the court actually relied on the inaccurate information

in sentencing the defendant, "A sentencing court demoustrates actual reliance

on misinformation when the court gives"explici mattention' tc it, 'founds'

its senteuce 'at least in part; on it, or gives ' specific consideration'

to the information before imposing the sentence." Id. Egg§§£, 404 U.S. at

444, 447 92 S. Ct. at 590,~592; "

Where a "plain error" is found to erist, a court of appeal hay "exercise

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its discretion to notice a forfeited error;§; only if .,¢ the error seriously

affects the fairness, integrityh‘or'public‘reputationjof the judicial~proceed~

inge." United States'v; Cotton, 535 U.$. 625, 631, 122 S.,Ct. 1781,Ll§§-

L.»Ed. 2d 860.(2002).»' ~~ ' ` bn 4

` It'is rarely, if ever, arguable that an illegal sentence does not conetitue

~plain-error. United STatee“v; Pewlinski, 374'F;3d~§36, 540-41-(7th Cir,'

2006). By its very nature¢'thergjie“an error it is plein, it affects the _

defendant'e aubetantial'rightjand it impugus the reputation of the judicial

proceedinge, dlt'is a fundamental-miscarriage'of'justice~to give a person

an illegal eentence'that‘increase*his~punishment;fjuet"ae it is to convict

an innocent person;"'United'States v.~Paladino,~401-¥;3d`471, 483 (7th`Cir,

20055¢ And by allowing an.illegal sentence "to stand would impugn the fairneas,

integrity, end public reputation of the judicial proceedinga." §i§§g§, 356

F.3d at 767»

In less than four (4} months, defense counsel weatherspoon, had entered

his appearance9 could.not or would not mount a viable defense.for his client,.

counsel failed to call any witnesses (expert~.or."'-‘-oth'er\x'izs.e_)..on_be}ualf\.of>»vl

the defense. A finger print'expert;‘DNA expert or drug analysis expert to

ensure the prosecution'e case can pass the constitutional mustard that the

Sixth-Amendment requiree;“United'States vt Cronic; 466 U.S. ¢:`)!¢8,A 104 S.'

cc. 2039, L. Edv 2d 657-c1984), the supreme court held that "the right»;o

effective assistance of counsel'is~thusy the right of eccueed~to requirel

the prosecution'e case to survive the crucible meaning~of-aduereerial-testing.

When a true edvereariel criminal trial has been conducted-even defense

counsel may havermade demonstrable errors~the~kink to testing envisioned

by the-Sixth Anendment has occurred"~ld;'athOAS;-Strickland, eupra, Independent

levidence,' whether that would come from the baggie alleged to have contained

cocaine,`and-LabjAnelysis regarding whether or not the alleged drug discovered

was fact cocaine and the actual amount therein, or fingerprintfs]/DNA linking

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petitioner to the prosecution to theory. This crucial point of evidence

was relied'on by the prosecution to carry the day as independent evidence

that petitioner Woods was waist-deep in the offens[s] charged in the indict-

ment. This was paramount, because of its independency to substantitate the

prosecution's case-in-chief. Absolutely, had defense counsel - Weatherspoon,

(a veteran, professional trial counsel) took the initiative to have prints

lifted from the baggie examined by-independent finger-print expert[s],

and or have that baggie examined by - independent DNA expert[s], this would

have helped serve as a catalyst in negotiating a plea, or provided credible

evidence for the defense in trial depending upon the expert[s] findings.

Either way, defense counsel would have been protecting his client's interest,

and zealously defending him within the bounds of the law. Nevertheless,*

armed with this information, defense counsel - weatherspoon proceeded to

trial without subpoenaing one witness for his client and the defense.

Petitioner was the only witness to testify for the defense. Thus, logically

speaking, without any witnesses to corroborate petitioner's claim of innocence

(which counsel was privy to prior to trial), it would have been advantageous

for defense counsel to discuss a plea on this offense also, since he had

negotiated a plea under Cause No F89-A4738 to run concurrent with this offense

in question. Instead from every legal indication, it appears defense counsel

- Weatherspoon, advised his client to enter into a sky dive without so much

as a parachute. Therefore, the question before this court is whether under

the Sixth Amendment of the United States Constitution, Cannon Rules of Pro-

fessional Conduct and The American Bar Association did petitioner woods

receive ineffective assistance of counsel at any critical stage[s] of Cause

No. F90-29380 and or Cause No. F89-A4738.

CONCLUSION

For our adversarial system of criminal justice to function, a defendant

must have one person who is zealously acting in his interest - his defense

_]_0..

lawyers Criminal defense lawyers have many duties. fhose duties include

trying to save their client from their own folly, especially as they face

an intimidating and even frightening criminal justice system. lhat point

is so true in critiquing;the awesome responsibilities of a defense attorney.

Now the operative question stands as who's to save the defendant from then

folly, or the egregious error of his defense counsel.

Petitioner has submitted EXHIBITS A.through F along with case authority

to demonstrate by a preponderance of evidence; that he received ineffective

assistance of counsel in Cause Nos. F89-A4l38 and F90-29380.

Petitioner Woods contends but for counsel - heatherspoon‘s ill»advice,

lack of investigation and preparation that a different result - a beneficial

one for petitioner would have transpired.

Based upon the above significan and compelling circumstances this Court

should Vacate petitoner's current conviction in this esser At the minimum

an evidentiary hearing should be ordered with the appointment of counsel

in this case.

The state of Texas request this Court to gather evidence by requesting

an affidavit from petitioner's attorney, Kenneth Weatherspoon which provides

information needed to dispose of petitioner's claims. First, an attorney

is fallible, capable of not recalling certain details;lHowever, petitioner

woods has submitted EXHIBITS A through F, and the record which is NOT fsllible,

and it does NOT change for anyone. Second, an evidentiary hearing would

xallow this Court to hear from the attorney in question, the petitioners

the prosecution and petitioner's appointed counsel for the purposes of this

hearing and in the interest of justice.

Pstitioner states that all of the above is true and accurate to best

of his knowledge, and against the offense of state and federal perjury.

DAIED: January 269 2015 l

Res ectfully submitted

/s/ Q/YUF/KM LU 3a

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Rodney Lewis Woods #18898-078

CERTIFlCATE OF SERVICE

I hereby certify that a copy of the foregoing has been forward`tbtthe

following by U.S. Mail on January 26,'2015:

Rebecca D. Ott

Assistant District Attorney

State Bar No. 24074842

Frank Crowley Courts Building

133 N. Riverfront Blvd., LB-19

Dallas, Texas 75207-4399

»/S/ pma/wald /Mv@`;d%_.'

Rodney Lest Woods #1889 -078

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