Petition for Rehearing — Jesus Jaime Jimenez, Petitioner v. Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division

FILED

JUL 0 7 2(j?o

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Tn The Supreme Court Of The United States

JfiSlIS JAIME JIMENEZ, .

Petitioner,,

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LORXE DA\/IS, Director, Texas Department

Of Criminal Justice - Correctional'institution Division

Respondent.

OK! PETITION FOR WRIT OF CERTIORARI TO

THE FIFTH CIRCUIT SOURT OF APPEALS

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permoN for rehearing

Jesus Jaime Jimenez

TDCJ No. 01363409

Darrington Unit

59 Darrington Rd.

Rosharon. Texas

775R3

(Petitioner Pro Se)

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TABLE DF CDNT0MIS

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Table of Contents .....................................................

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Table nf Authorities-,...................................

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Petition for Rehearinq anr! Suggestion in Sunoort .........................

Statement of Facts .........................................

Reason Meriting Rehearing ...........................................................

Reason 1 :

The Fifth Circuits decision contains glaring factual error that

is clearly contrary to this Courts previous ruling, by misapolyLac.ouianna Ctv. Dist Attorney v. Coss, S32 LI.5. 394, 4G1-n4

Reason 2:

There is.an .imnortant Question of Federal and State Law, that

needs this Courts attention, when dealing with 'Lack of Curisdiction1, as to denying American Citizen'U, the Due Process

Rights and other Constitutional Rights under the U.S Amendments

by allowing trial courts to act on a case, when he has lost jurisdiction .....................................

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1

1

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Suggestion .in Support of Rehearing

Conclusion ........................................

4

5

Inmate Declaration ...........................................

Certificate of Service ...................................

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3

Certificate of Good Faith .............................

Exhibits 1 thru 7 ..

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6

7

TABLE OF AUTHORITIES

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Case Laws:

nubia'Petroleum Co. v. Kazi, 12 5.1.1.3d 71

(Tex. 2000)

3, 4

Ex parte Armstrong, S S.W.2d 674-76 (19?.8)

4

F-x P^rte McCrarile, 74 U.S. 506, 514 (1QSB) ........... ..

2

Ex parte Sledge, 391 SLJ.J/Sd 1Tl4':-(Tex. Orlm. App. 2013)

4

Oohnsnn v. Herbst, 53 S.ct. at 1Q24-1H2.5

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Lackawanna Cty. Oist. Attnrnev v. Otnss, 532 IJ.S. 394

Moore v. Dempsey, 261 LI.S. B6; 43 S.Ct. 265 (1923)

AQ1 _Q4 CPnoD

3, 4

• • 1,5, 7

3

Mi« v. State, 65 S.M.3d 664, 667 (Tex. Crim. °pp. 20Q1)

Statfe .el. rel. Btyafi; v. -McDonaId ■' :64'2' S: l<i. 2d' 4§2 • (Tex

4

:'Crim;-Appi>1982);. 4, 5

IJ.S.A. v. Peppers, 399 F.3d 211

(3rd Cir. ?01Q) .........

......................................... 2, 4

RULES:

JJ.S. Supreme Court Rule 10 a)

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Rule 10 c)

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Rule 44 ..

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1, ^

13 Tex. Jur. 2d. $50 pp. 475-77 ......................

Code Uf Criminal Pro.

Article 41 .12 $ R(a)

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1, 3

t/Etld I of the AFDpA 0f 1 ogg

2

§2254 (a) .....................................

2

§22-54 (d) .........

2, 4

Amendments of the U.S. Constitution:

1 st

5

5 th

5

8th

14th

5

3, 5, 7

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ii.

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Petition For Rehearing And Suggestions 3!n Support

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COMES NO!'! Petitioner, Oesus Oaime Oimenez, TDC3 No. 01363409, appearing Pro Se,

and prays this Court to 'Grant' Rehearing pursuant to Rule 44, and thereafter 'Grant'

him a Writ of Certiorari, to review the opinion of the Fifth Circuit Court Of Appeals.

®n support of Petition, Mr. Oimenez states the following:

Statement Of Facts

In an agreement with the District Attorney (representing the Stated and through

the approval of the Honorable Judge Emil Karl Prohl, it was agreed, that the Defend­

ant/Petitioner [Herein after! was to serve 75 to 90 days in bootcamp (defined as:

a

Special".Alternat-ivi”Incarceration Program or T.D.C. Rootcamo — under the Code of

Criminal Procedures, Article 42.12 Sec. fl(a))..

Eased on an agreement (plea hargain deal! between the defendant and the State,

after serving 75 days in bootcamp, but before the expiration of 90 days from the date

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the execution actually begins — the judge df the court, that imposed the sentence

may suspend further execution nf the sentence imnnseri and place the defendant on

shnnl< probation. . .

In this instant case (B91-54) the defendant s 90 days were completed on November

fith, however, he was not brought before the Ourige, until his 91st day — to which,

legally - the Ourige had already lost jurisdiction to act on the case...

The case on which the defendant is currently serving (B91-53)

was part of the

plea bargain deal} along with the B91-54 case, and therefore it is still binding and

currently active J whether he finished-'one of the sentence

or not — because they

are both joined...

Reasons Meriting Rehearing

Reason 1.

The Fifth Circuits decision contains glaring factual error that is rlpar

Based on the Fifth Circuit's decision.(Ex. ?) and the U.5.

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District Court's decU:

sion (F:^. 3'! they concluded, that based on the Lackawanna standard.

a defendant could

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not attack an expired conviction..

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However, they failed to understand, thatf this Court, as well as Title f of the

AEDPA of 1995 and $2254 (sHd), along with other Courts —

to which

have applied an exception,

a uniqLE constitutional defect, rising to the level of a Jurisdictional De­

fect, allows the defendant grounds, to challenge his conviction, because, as I will

show in ground 2, 'without jurisdiction, the Court cannot proceed at all in any cause,

quoting Ex Parte FlcCradle, 74 U.S. 506, 514 (1868), and other case law§..

Under $2254 State Custody; remedies in Federal Courts, it states:

(a) |he Supreme Court, a Justice thereof, a circuit judge, or a district court .

'shall] entertain an application for a writ of habeas in behalt of a per­

son m custody pursuant to the. judgement of a State Court [onlyl on the

ground that he is in custody in violation of the Constitution or Laws or

Treaties of the United States (which also include, due process of law and

lack of jurisdiction... emphasis■mine)..

$2254 Ad) reads as follow:

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An application for writ of Haheas corpub on behalf of a person in cust­

ody pursuant to the judgement of a state court [shall not] be granted with

respects to any claim that was adjudicated on the merits in state court proceedings [UNLESS] the adjudication of the claim —

(1) resulted in aiddcision that was contrary to, br involved an unrea­

sonable application of, clearly established Federal Law, as deter­

mined by the U.S. Supreme Court...

Under the AEDPA, a defendant may file a mditiion 'collaterally attacking' his sentance haded under certain specifically listed grounds .... namely, 1) that the sent­

ence was imposed in violation of the constitution or federal law, 2) that the Court

was without jurisdiction to imposedthe sentenca. 3) that the sent.anca axceeaderi the

maximum authorized bv law, or 4) that the sentence is otherwise subject to collateral

attacked ... •

quoting U.S.A. v. Ronald Pepoers, 899 F.3d. 211 (3rd Cir. 2018)...Furthermore, the Fifth Circuit and the U.S District Court, wars’ jjTjrQrg in determining

that the 091-54 case is considered an expired conviction', when in fact it is not..

Because if you'll see in ,Ex. 4, both B91-54 and E91-53) they are both binding, by the

plea bargain agreement - and therefore, one can not be considered expired, without

the other..

And if you'll look at the Petitioner's time sheet in Ex. 6 and his judge­

ment of conviction, in fix. 6, it states that he is serving a 6D years sentence (1C

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years for the B91-53 and SC years for the £(16-146 cause. 1, to which it does not expire

2.

til 11/24/64 (see: Bx 5 )..

Therefore, having concluded that the Petitioner may not collaterally challenge

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hie burglary convictions, IS frivilous and not supported by law.

Reason 2.

There is an important question of Federal and State Law. that needs

this Courts attention, when dealing with 'Lack of Jurisdiction', as to

denying American Citizen's, the Due Process Rights and other Constitu­

tional Rights under the U.S. Amendments, by allowing trial courts to

act on a case, when he has lost Jurisdiction..

The Texas Supreme Court, has previously held in Dubia Petroleum Co, v. Kazi, 12

S.k!.3ri 71 (Teik. 2nnD), that 'Subject-Matter Jurisdiction is a power that exists by

operation of law only, and cannot be conferred upon any Court by consent or waiver,

and thus, a judgement will never be considered final, if tbe Court lacked subjectmatter jurisdiction.

In Te&as, under the Te£as Code of Criminal Procedure, article 42.12 Sec. -8(a)

it clearly states, that:

(a) Far the purpose of this section, the jurisdiction of a Court in which a

sentence requiring confinement in the Te*as Department of Corrections is im­

posed for a conviction of a Felony [shalll continue for 9D days from the date

the execution of the sentence actually begins.

After the expiration of 7S

days but prior to the expiration of Pll days from the date the excuttuon of the

sentence actually begins, the judqe of the court that imposed the sentence may

suspend further execution of the sentence imposed and place the defendant on

probation ....................

Being that the trial judge acted outside of the statutory window, then, he no

longer had jurisdiction to hear such case, much less, place the petitioner on shock

probation..

(See: Ex. 71

This Court has pteviousi(//h§ld,: that, 'the judgement of conviction pronounced by

a Court without jurisdiction is void, and one imprisoned thereunder, may obtain rei.

lease by habeas corpus..

Johnson v. Zerbst, 58 S.Ct. at 1D24-1D25..

In USA v. Pep­

pers, the same results were held (899 F.3d. 211 (3rd Cir. 201fl)) ...

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tthat the Court was without jurisdiction to impose the sentence)__ This Court and

Habeas Statutes, have long held, allowing collateral attacks on final judgements of

conviction, only where the rendering court lacked 'jurisdiction'... Moore v. Demp­

sey, 261 U.S. 86; 43 S.Ct. 265 (1923)..

3.

Ex parte Sledge, 391 S.lil. 3d 1D4 (Tex. Crim. App. 2013) the Courts held, that

Lack of Jurisdiction' cannot tie waived or forfeiture, and can he attacked at any

iime'

Nix v. State, 65 S.bl.3d 664, 667 (Tex. Crim. App. 2001 )...

As 'Judicial Ac--

tion' without jurisdiction, is Void'!

blhere the Court is without iurisdiction, it

has no authority to render judgement other than one, of dismissal.. 15 Tex. Jur.

2d. $50 pp. 475-77..

Any Order entered hy a Court, having 'No' Jurisdiction is void.

Ex Parte Armstrong, 8 S.bl. 2d 674^76^(1923)..

Tn State ex. rel, Bryan v. McDonald, 642 S.bJ.2d 492 (Tex. Crim. App. 1982) the

Courts held, that, 'when a trial court orders shock probation [AFTERl it loses iurisdiction, the Order is void!!!

Therefore, because the trial court ORDERED shock

probation in this instant case, that Order should also be void, because the Court

lacked jurisdiction/authority, to act in such case...

Suggestions In Support Of Rehearing

The Fifth Circuit-Court Of Appeals' decision, as well as, the U.5. District Court

decision, that Petitioner cannot attack" his burglarv conviction, because it is deemed

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'an expired conviction', has no legitimate legal holding, nor is it supported by Law.

On the contrary, this Court, as wel as, other Courts, and Laws of these United States,

have held differently.

Because, when a trial judge, acts on a case, without having

jurisdiction or authority, that order is considered void, and it can be argued/raised

at any time..

For it is not subject to waiver!!'

Furthermore, when a decision that was contrary to, or involved an unreasonable ap­

plication of a clearly established Federal Law, as determined by ths U.S. Supreme Court

the proper method of resolving the issues, is through a writ of habeas corpus... 2254

(ri). .

and as this Court has held, as well as the 3rd Circuit and the Texas Supreme

Court — in •’Zerbhtj-.Pepners, and Kazi..

... 'the judgement of corviction pronounced

by a Court without jurisdiction, is Woid, and one imprisoned thereunder, may obtain

release by habeas corpus... making this (831-54 and S91-53 case), null..

Under the United States Supreme Court rule 10, a writ of certiorari will be

granted for the compelling reasons:

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a) a United States Court of Appeals has entered a dacision ifl conflict with tha

dgBiiinn of another United States Court of Appeals on the same important mat­

ter, in this case — the 3rd Circuit in the feppers' decision...

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■ e^ .... has decided an an important Fedaral questinn, in a way that conflicts

with a previous decision of Federal Law or has decided an .important Federal question

in a way that conflicts with revelant decisions of this Court.

First, the Fifth Circuit and the IJ.S. District Court, held, that petitioner could

not attack his burglary conviction;, .because it was considered an expired conviction,

relying on Lackawanna Ctv Dist. Attorney v. Coes, .53?. U.5. 394, 4D1-C14 (20QT)..

However, they missapplied and misinterpretted the actual reading of Lackawanna,

because this Court (the U.S Supreme Courts held, that there was an exception which ex­

isted, on which a unique constitutional defect, rises to the level of a jurisdiction­

al defect...

In this case, the trial court has lost jurisdiction to hear and act in

such way, because it was acting outside df the statutory window, to which, it no long­

er held jurisdiction..

Pnd as previously stated, when the Court Order a defendant to

shock probation, after, it loses jurisdiction (as stated in State ex. rel. Bryan v.

McDonald, 642 S.W.2d 492 (Tex. Crim. App. 19S2)) then that ORDER is void..

Which

makes this sentence/conviction, null/void..

And as the Texas Supreme Court previously stated in Dubia Petroleum Co. v. Kazi,

1? S.W.3d 71 (Tex. 20001 'Subject-Matter Ourisdiction is a power that eSdsts by op­

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eration of law only, and [cannot1 be conferred upon any Court by consent or waiver, •

and thus a judgement will [NEWER] he considered final, if the Court lacked subjectmatter jurisdiction...

Conclusion

For the reasons stated above, this Court must Crant Rehearing of its judgement

entered on Oune 22, 2020, and issue a Writ of Certiorari, to hold the Fifth Circuit

and U.S District Court for the WesternSnistftct of Texas, San Antonio Division —

accountable for failing to abide by this Courts previous decisions, for violating

the rights of U.S. Citizens, to Due Process, as well as, the 14th Amendment, the

Sth Amendment, the 5th Amendment and the 1st Amendment of the IJ.S. Constitution..

to (1st amendment — Congress shall make no law .. abriging... the rights of the

people.

5th Amendment — without due process of law,

cruel and unusual punishment inflicted,

Rth Amendment — nor

14fh Amendment — No Rt.a+e shal 1 depri ve

any person of life,.liberty, or property, without due process of law..)

Petitioner the relief due to him.

and Grant

Should Mr Timenez's cry for justice not he

heard, and relief denied — may this Court's cry not be heard 'For whoever shall

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shut their ears to the cry of the poor, will also cry themseiVes, and not be heard.

Proverbs 21:13. ..

Respectfully submitted,

Dated: July 3, 2020..

A^O\

Jesus Jaime Jimenez, Petitioner, Pro Se

TDCJ Mo. 01363409

Darrington Unit

59 Darrington Rd.

Rosharon, TeMas

775R3

Inmate Declaration

I, Jesus Jaime Jimenez, TDCJ Mo. 01363400, being presently incarcerated in the

Darrington Unit, in Rrazoria County, Texas — verify and declare under the penalty

of perjury, that the foregoing 'Petition For Rehearing', and the facts stated there­

in, are true and correct, to the best of my knowledge..

Dated: July 3, 2020.

/H/

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Signature of Petitioner

Certificate Of Service

I certify, that I have sent a copy to the Office of:

Mr. Edward Larrv Marshall

=?Assistant Attorney Ceneral

209 l'l. 14th Street

Austin- Trxss

7S701

The attorney representing Ms Lorie Davis, by a prepaid stamped envelope...

Dated:

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July 3, 2D2U- /s/

ft<h C

Signature Of Petitioner

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