The opinion
COURT OF CRIMINAL APPEALS
ABEL ACOSTA/ CLERK
P.O. BOX 12308
CAPITAL STATION
AUS'I‘IN, 'I‘EXAS 78711
RE: Applicant's Traverse to State's Response to Writ No: W12-71589~J(A)
with Request for Evidentiary Hearing to Show Cause AD LITEM.
Dear Clerk:
Please find within the above mentioned, please file and present these papers
to the appropriate court for a hearing and ruling.
Your assistance in this matter is greatly appreciated.
§odney Zp;;¢r
TDCJ# l 4 09
815 12th St.
Huntsville, Texas 77348
RECE|VED lM
couRT oF chmNALAPpEALs
NOV 02 2615
ebe!Acosia,CEea'k
‘ M¢YU‘,MO_OT
WRIT NO. W12-71589-J(A)
/)
IN CRIMINAL'DISTRICT
COURT NO.3
DALLAS COUN¥Y!'TE§AS
fn .._ /
EX PARTE
¢»O'>¢O>
RODNEY J. FOSTER'
APPLICANT'S TRAVERSE TO STATE'S RESPONSE TO WRIT NO.W12-71589-J(A)
[WITH REQUEST FOR EVIDENTIARY HEARING TO SHOW CAUSE AD LITEM]
Applicant Rodney J. Foster ("Foster"), now comes before this
Honorable Court and presents this traverse, so that\the Court willsee
the merits in the above cause, and recommend that relief be given.
STANDARD FOR GRANTING RELlEF
"A State-Court decision that correctly identifies the governing
Legal rule, but applies it unreasonably to the facts of a particular
prisonerls case certainly should qualify as a decision involving
unreasonable application of clearly established state and federal law."
MERITS OE §RGUNDS
In light of the state's views and the decision it has presented
regarding the above Writ of Habeas Corpus (ll.O7), Foster further
presents clarification of his grounds, and respectfully asks this
Honorable Court for further consideration of his cause by seeking
equitable relief.
GROUND ONE (VOID INDICTMENT)
The basis for Foster's contention that the Grand Jury has erroneously
indicted him, in violation of his constitutional rights, under the
wrong statute stems from the fact that Foster's appellate attorney
asserted this claim as a basis for Foster's appeal. (See Direct Appeal
No. OS-l3-OO390-CR). Foster's presumption is that his defense attorney,
Peter Barret, had in fact preserved this defect before trial via motion.
As without such vital evidences preservation, Foster's Appellate
Attorney's claimwould be frivolous and unreasonable. As well as being
detrimental to his appeal, not to mention that this would be a direct
(1)
violation of Tekas Rules of Professional Conduct for Lawyers. Foster,
who is unskilled at law, did not, nor did he even know to object to
this defect, due to his reliance on his defense attorney's misadvise,
about having been misled to believe that Peter Barrett had in fact
ypreserved and properly protected his substantive and procedural rights,
'by timely filing all the proper motions needed to bolster his defense.
Therefo::, his waivier of preservation is the basis of Ineffective
assistance of counsel, which prejudiced Foster.
Foster does not challenge the sufficiency of evidence that supports
his conviction. His challenge is bases on "no evidence" not
"insufficency of evidence", there is a difference between the two.
No evidence is based on the fact that there is no evidence that is
material that proves Foster commited the offense for which he has been
convicted. Foster is aware that "sufficency of evidence claims" are
not cognizable in post-conviction habeas proceedings, that is not
Foster's argument. A thorough look at the record will indicate that
there is no evidence that supports a conviction, accordingly this
ground should not be denied, but further investigated. Foster requests
that an evidentiary hearing be had to shine light on any of the things
that are outside the record that support no evidence.
GROUNDS TWO & THREE (INEFFECTIVE ASSISTANCE OF COUNSEL)
'Foster's claims of ineffective assistance of counsel ("IAC") is
raised before the state court and is meritorious, therefore relief
should be granted{ as the court has the authority and prudence to
judicously make an adequate, unbiased assessment of the claims set
before them. Acting equitably and in the interest of justice, foster
asks this court to consider that Foster has suffered an egregious
violation to his Sixth Amendment rights, evidenced by the fact that
(2)
Peter Barret failed in his duties to protect Foster's_substantive
and procedural rights by neglecting the legal matters that were
entrusted to him by Foster. Peter Barret failed to visit him, nor
did he spend a reasonable amount of time devising a viable defense
theory or strategy, thereby creating a conflict of interest, and
placed Foster under unnecessary mental stress. Further deficient
performance was done by Peter Barret, when he persuaded Foster,using
fraudulent coersion tacticts, to plead guilty and accept the plea
bargin. He did this by falsely assuring Foster that the state actually
had a weapon (gun), which they said was used by him, at the crime
scene. This was done by showing Foster a picture of a gun during a
visit with him. However, at the trial, no affirmative finding of a
weapon was brought before the court as an exhibit nor was there any
evidence of a weapon that belonged to, or was used by Foster. This
clearly shows that Foster's hired attorney blaitantly lied to him
in order to scare him into pleading guilty. The aforementioned
unlawful actions taken by Peter Barret are in violation of Texas
Disciplinary Rules of Professional Conduct Article X, Section 9.
Peter Barret also broke the following Rules of Profession donduct:
Rule l.Ol(b)(l) (In representing a client neglecting a legal
matter intrusted to a lawyer. E.G. failed to file any timely
motions in his clients defense.
Failure to contact witnesses in a timely manner.
Rule l.Ol(b)(2) (In representing a client frequently failing
to carry out the obligations owed to clients. E.G. Failed to
discuss case with Foster in order to devise a viable defense
strategy, thereby creatin conflict of interest and causeing
Foster prejudice.
In white v. Roper 416 F.3d 728 (8th cir 2005), the Court found
that trial counsel's decision not to call an interview witness was
ineffective assistance. Although Peter Barret did call and interview
a witness, the reasonable timing and delay should show this court
<3)
his dereliction of duties to his client under oath. $uch significant
decisions being unreasonably made has rendered Foster's trial counsel
inadequate, as he has failed to exercise reasonable professional
judgment, and his failure to provide adequate counsel as determined
by the Sixth Amendment has prejudiced Foster by him being imprisoned
unconstitutionally and without Due Process.
In light of the circumstances within Foster's eased it is apparent
that Peter Barret's ineffectiveness was prejudice and harmful to
Foster. There is most definately a reasonable probability that with
adequate professional representation, foster would not have been
convicted of aggrivated assault and sentenced to 20 years imprisonment.
Although the right to reasonable effective assistance of counsel does
not guarantee nor require errorless counsel, it does however, reqquire
competency, integrity, and affirmative action. Counsel is also required
to create and present sound trial strategy} to properly defend his
client's rights, and not to create controversy or a fearful climate_
based on conflict of interest.
coNcLUSIoN
Foster also believes (as does the state) that further factual
investigation is necessary in this cause, and in doing so that discovery
will be made which will both highlight and Substantiate his meritorious
groundsj Foster asserts that an improper summation has resulted in
the court's inequitable decision to deny his grounds, therefore, he
is now forthrightly providing insightful rebuttal and asking this
Honorable Court for special consideration through unbiased eyes.
PRAYER 4
WHEREFORE PREMISES CONSIDERED, and for the presentation of facts
herein, Foster prays that this court grant his request for an
evidentiary hearing, while taking in consideration of the evidence
(4)
that has been requested by the state, and so that an equitable,
impartial, and correct evaluation can be made'under "the eyes of
justice". Foster prays for relief and that the cumalitive force of
all facts presented can and will be exposed and considered under the
most favorable circumstances.
PRISONER'S UNSWORN DECLARATION
I, Rodney J. Foster, Applicant, do hereby declare under the
penalty of perjury that the aforementioned statements are all true
and correct to the best of my knowledge and
Executed on October, 26, 2015. /Zj%-ef féZ/é;?dzpy/
Rodney /oster #1847709
Huntsville Unit A~ 3- l7t
815 12th Street
Huntsville, TX 77348
CERTIFICATE OF SERVICE
I, Rodney Foster, do hereby certify that a true and correct copy
of the aforementioned document: APPLICANT'S TRAVERSE TO STATE'S RE8PONSE
TO WRIT NO.W12-71589-J(A) WITH REQUEST FOR EVIDENTIARY HEARING TOSHOW
AD LITEM was placed in the prison mailbox recepticle to be mailed to
the following addresses by U.S. First Class Mail, pre-paid on fla
0(:10&£)©____,2015.
Felicia Pitre »
District Clerk
Frank Crowly Court Building
133 N. Riverfront Blvd. LB-12
Dallas, TX 75207-4300 /HLZ¢%%r//
Rodney dkgter #1847709
Huntsville UNit
815 12th Street
Huntsville, TX 77348
(5)