Petition for Writ of Certiorari — Larry Michael Maples, Petitioner v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division

20=610'? ORIGINAL

No.

FILED

JUL 0 4 2020

IN THE

SUPREME COURT OF THE UNITED STATES

Larry M. Maples

Pro se — PETITIONER

(Your Name)

vs.

r:

Lorie Davis TDCJ- Director - -

— RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

United States Court Of Appeals For The Fifth Circuit

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

Larry M. Maples

(Your Name)

3060 FM 3514

(Address)

Beaumont, Texas 77705

(City, State, Zip Code)

(409) 722-5255

(Phone Number)

QUESTION(S) PRESENTED

Whether an accused's Due Process Rights are violated when all lower courts

deny an Evidentiary Hearing on controversial evidence and picture of a pillow,

when States own evidence proves petitioner did not use the pillow?

Whether an accused's Due Process Rights are violated when State and Federal

District Courts deny writ of Habeas Corpus without "Findings of Facts" and

"Conclusions of Law" for petitioner to Argue Facts of Law. to have a Full and

Fair Fundamental Trial.

Whether an accused's Constitutional Right to have "Effective Assistance of

Counsel'j is violated when, Counsel fails to make an investigation into the

case, and makes strategic decisions to not hire "Experts" to make Ballastics

and Medical findings, when Counsel was made aware of perjury of States only

witness before Trial and when Counsel is not versed in the "Technical Subject

Matter", instead relies upon States witness and investigation?

(i)

I

LIST OF PARTIES

[X] All parties appear in the caption of the case on the cover page.

[ ] All parties do not appear in the caption of the case on the cover page. A

list of all parties to the proceeding in the court whose judgment is the

subject of this petition is as follows:

RELATED CASES

Maples v State Tr.Ct.No.CR 13-0033A WR-87, 178-01 Denial of Habeas Corpus,

without written orders, Court of Criminal Appeals of Texas.

Entered August 16, 2017 Unpublished

Maples v Davis Director TDCJ 6:17-cv-00560 Memorandum Opinion denying Federal

Habeas Corpus and Evidentiary Hearing and C.O.A. with Prejudice.

United States District Court Eastern Division of Texas, Entered

February 22, 2019. Unpublished

Maples v Davis Director TDCJ 19-40225 Memorandum and Opinion on denial of

Request for C.O.A. and Affirming District Courts decision to

deny Evidentiary Hearing. United States Court of Appeals for

the Fifth Circuit, Entered May 21, 2020 Unpublished

(ii)

TABLE OF CONTENTS

OPINIONS BELOW..................................................................

JURISDICTION......................................................................

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE....................................................

REASONS FOR GRANTING THE WRIT............................

CONCLUSION..................................................................

1

2

3

5

7

14

INDEX TO APPENDICES

APPENDIX A United States Court of Appeals for the Fifth Circuit- denied

request for C.O.A. and Affirming District Courts denial of

Evidentiary Hearing May 21, 2020.

APPENDIX B Final Judgment entered on § 2254 with Memorandum and Opinion

dissmissing with prejudice and denying the Motion and Certificate

of Appealability February 22, 2019.

APPENDIX C Motion to Expand the Record(for the autopsy report)-October 3,

2018.

APPENDIX D Report and Recommendation of the United States Magistrate Judge

Filed June 8, 2018.

APPENDIX E Postcard Notice from Court of Criminal Appeals of Texas on Article

11.07 being denied without written orders and without hearing.

APPENDIX F Memorandum, Opinion and Mandate of the Twelfth Court of Appeals

District of Texas affirming trial courts judgment. Entered June

24, 2016.

INDEX TO EXHIBITS

(see attached list at iv)

(iii)

INDEX TO EXHIBITS

EXHIBIT 1

Letter to 2nd Chair Trial Attomey/Appellant Attorney from

Petitioner about the 2 conflicting testimonies of Texas Ranger

Brent Davis(one in evidentiary hearing and the other in trial).

EXHIBIT 2

Letter from 2nd Chair Trial Attomey/Appellant Attorney James

Huggler to Petitioner confirming the 2 conflicting testimonies

of Texas Ranger Brent Davis.

EXHIBIT 3

Affidavit Search Warrant from Van Zandt County where Deputy

Prock said "There was a pillow partially over her face".

EXHIBIT 4

Document ffrom the Texas State Law Library confirming that there

was no "Findings of Facts" or "Conclusions of Law" issued on

Article 11.07.

EXHIBIT 5

Cost of the transcripts from 294th Judicial Court Reporter

Estella Grisham $1400.00

EXHIBIT 6

Letter from petitioner to his parents to purchase the Facts and

Findings and Conclusion of Law from the Trial Court and to pur­

chase just the pre-trial evidentiary hearing on the lost costodial

recording.

(iv)

TABLE OF AUTHORITIES CITED

CASES

Haines v Kemer; 404 U.S. 519 (1972)......................................

Hibbler v Berridetti; 693 FI-3d 1140 (2012)............................

Hulsey v Owens; 63 F.3d 354 (5th Cir 1995)............................

Miller-El v Cockrell; 537 U.S. 322 123 S.Ct. 1029 (2003)....

Scheanette v Quarterman; 482 F.3d 815,818 (5th Cir 2007)....

Soffar v Dretke; 368 F.3d 441,479 (5th Cir 2004)..................

Strickland v Washington; 466 U.S.at 681 104 S.Ct. 2052(1984)

Townsend v Sain; 372 U.S. 312-313 83 S.Ct. 757......................

PAGE NUMBER

4

9

4

STATUTES AND RULES

28 U.S.C. § 1254(1)...................................

28 U.S.C. § 2254(d),(d)(2),(e)(1)............

Texas Constitution Article 1 § 10,13,19..

Texas Rules Appellant Procedure Rule 73.3

Texas Penal Code 19.03(a)(2)....................

OTHER:

Under:

11

11

12

13

9

1,3

11

11

11

5

CONSTITITIONAL PROVISIONS

Fifth, Sixth and Fourteenth Amendments of the United States

Due Process Clause...................................................................

Effective Assistance Clause....................................................

(v)

7,9,10

7,13

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[X] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix

the petition and is

A

to

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[X] is unpublished.

The opinion of the United States district court appears at Appendix B P

the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[X] is unpublished.

[X] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix___E_ to the petition and is

; or,

[ ] reported at

[ ] has been designated for publication but is not yet reported; or,

[X] is unpublished.

The opinion of the 12th Court of Appeals_

appears at Appendix F ^ to the petition and is

; or,

[ ] reported at

[ ] has been designated for publication but is not yet reported; or,

[X] is unpublished.

1.

i

court

to

JURISDICTION

[X] For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was May 21, 2020__________

[X] No petition for rehearing was timely filed in my case.

[ ] A timely petition for rehearing was denied by the United States Court of

Appeals on the following date:__________

, and a copy of the

order denying rehearing appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including______

(date) on

(date)

in Application No.__ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix_______

[ ] A timely petition for rehearing was thereafter denied on the following date:

____________________!_, and a copy of the order denying rehearing

appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including____

(date) on

(date) in

Application No.__ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

U.S. CONSTITUTION 5th AMENDMENT

No person shall be held to answer for a capital, or infamous crime....without

due process of law

U.S. CONSTITUTION 6th AMENDMENT

In all criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial, by an impartial jury of the State and district wherein

the crime shall have been committed • • • and to be informed of the nature and

cause of the accusation; to be confronted with the witnesses against him;

to have compulsory process for obtaining witnesses in his favor, and to have

the assistance of counsel for his defense.

U.S. CONSTITUTION 14th AMENDMENT

No State shall deprive any person of life, liberty, or property, without

due process of law.

28 U.S.C. § 1254(1)

Courts of appeals; certiorari; certified questions

Cases in the courts of appeals may be reviewed by the Supreme Court by the

following method:

(1) By writ of certiorari granted upon the petition of any party to any

civil or criminal case, before or after rendition of judgment or decree.

Effective date of act June 27, 1988.

3

PETITION FOR WRIT OF CERTIORARI

Petitioner Larry Maples, Respectfully petitions this Honorable Court for

Writ of Certiorari to review the decision of the United States Court of Appeals

for the Fifth Circuit and lower Courts decision, which denied an "Evidentiary

Hearing", that thru Facts of Law submitted, could have changed the outcome and

opinion of reasonable jurist.

PETITIONERS OPENING PRAYER TO THE COURT

Petitioner Prays this Honorable Court to Review this Petition for Writ

of Certiorari, under the more liberal standard established by this Honorable

United States Supreme Court in: Haines v Kemer; 404 U.S. 519 (1972) and

Hulsey v Owens; 63 F.3d 354 (5th Cir 1995).

..."Pro se pleadings are to be construed liberally and held to less

stringent standards than formal pleadings drafted by lawyers, if the

Court can reasonably read claims to state a valid cause of action

upon which litigants could prevail, it should do so despite litigants

failure to cite Proper Authority, Confusion of Legal Theories, Poor

Grammer and Sentence Construction of a litigants unfamiliarity with

PLEADING REQUIREMENTS"...

Haines; 404 U.S. 519 (1972)

4

STATEMENT OF THE CASE

On Nov. 6, 2014, Petitioner Larry Maples(hereinafter petitioner)was found

guilty of Capital Murder, Texas Penal Code 19.03(a)(2) and was sentenced to

life no parole in TDCJ. James Huggler, second chair trial Attorney and Appellant

Counsel timely filed Direct Appeal on Grounds of Insufficient Evidence for

Capital Murder, Motion for Directed Verdict and a Denial of a Jury Instruction

regarding perjury of states witness Moises Clemente(hereinafter Clemente).

Which was affirmed June 24, 2016(Appendix F). Huggler wasn't wrong when he filed

for Insufficient Evidence for Capital Murder and perjury of States only witness.

Clemente perjured hisself five(5) times under oath about him having sex with

petitioners wife. State had already told Clemente months before trial that his

semen was found in petitioners wife vaginally and anally. Twelfth Court of

Appeals confirmed that Clemente had perjured himself under oath. Even before

trial the Sherriff of Van Zandt County had told Foxnews.com that Clementes'

stories had changed several times during interviews. Not only did Clemente per­

jure himself about these things, petitioner argues he perjured more of his

testimony which this Honorable Court will read in "Reasons for Granting Petition".

Appellant Counsel Huggler filed a PDR on the perjury ground, which was

refused by Texas Court of Criminal Appeals on Aug. 25, 2016. Petitioner timely

filed Article 11.07 on Jun. 14, 2017 on grounds of Ineffective Assistance of

Counsel for failure to hire Ballistics/Reconstruction Experts as well as a

Medical Expert to challenge states theories. Counsel advising petitioner not to

testify and pressuring petitioner and family to presure petitioner to plea

guilty, which was denied without written orders on Aug. 16, 2017(Appendix E).

Petitioner argued that Trial Counsel should have hired Ballistics/Reconstruction

Experts to dispute theories of State and the already known lying of Clemente

that Counsel knew was going to be presented in Court at Trial. Trial Counsel

could have shown the Jury and Public how the States theories and perjured events

from Clemente, even before and during Trial were wrong based on facts presented

by the Experts. The Ballistics Expert coupled with the Medical Expert would have

shown thru the examination of the pillow that petitioner did not use the pillow

as a buffer, nor Fid the petitioner shoot thru the pillow as the State and

Clemente reported. Petitioner also submitted a Motion for Evidentiary Hearing

on the pillow which was denied.

5

Petitioner timely filed § 2254 Pro se on Sept. 29, 2017 on grounds of

Ineffective Assistance of Counsel for not hiring Ballistics/Reconstruction

and Medical Experts, Counsel Advising petitioner not to testify and Counsel

not building a Defense around Sudden Passion. Petitioner again argues that

Trial Counsel was Ineffective because he didn't hire Ballistics/Reconstruction

Experts to prove that Clemente was lying about events that took place at his

residence that mourning. Especially when Counsel was aware of Clementes' lying

to State even before Trial. Trial Counsel failed to hire a Medical Expert to

challenge the Autopsy Report even after Counsel was made aware months before

trial that petitioner didn't use the pillow as a buffer or shoot thru it.

Petitioner also argues Trial Counsel should have built a defense around Sudden

Passion due in part to the perjury of Clemente and the situation that petitioner

encountered after seeing his wife in a state of undress with Clemente

Respondent filed answer on Jan. 22, 2018. Petitioner timely filed Traverse

on Feb. 2, 2018. Magistrate Judge John D. Love filed his Report and Recom­

mendations on Jun. 8, 2018(Appendix D). Petitioner timely filed Objections to

Report and Recommendations on Jun. 18, 2018. Petitioner filed a Motion to Ex­

pand the Record for District Court to review the Autopsy report in support of

the Evidentiary Hearing of the pillow on Oct. 3, 2018(Appendix C). Final Judg­

ment on § 2254 was entered on Feb. 22, 2019(Appendix B), dismissing with pre­

judice and denying C.O.A. and Motion for Evidentiary Hearing on the pillow.

Petitioner timely filed Notice of Appeal with District Court on Mar. 6,

2019. Petitioner timely files "Request for C.O.A." from the United States Court

of Appeals for the Fifth Circuit on Jul. 14, 2019 on grounds of State and

Federal Courts not conducting "Facts and Findings" and "Conclusions of Law",

Ineffective Assistance of Counsel on failure to investigate, failure to testify,

failure to build a defense around Sudden Passion and included a Motion for

Evidentiary Hearing on the pillow. Final Judgment was entered May 21, 2020

(Appendix A) denying C.O.A. and Affirming District Courts denial of an

Evidentiary Hearing.

6

REASONS FOR GRANTING THE PETITION

United States Fifth Circuit, U.S. District Court Eastern Division of Texas,

Texas High Court and Trial Court have all ignored Pro se plea for an "Evi­

dentiary Hearing" on a pillow that was supposedly placed over petitioners

wife's face/head by petitioner, using it as a "buffer", shooting thru the

pillow killing his wife. The State used a picture to convince the Jury and

Public into believing that petitioner had "intent to kill". There are dis­

puted issues between State and District Courts where State implies petitioner

"placed pillow over her face, put his firearm to her chin, pulling the trigger".

District Court, Judge Love implies petitioner "fatal blow being shot thru the

pillow while it was covering her face". Jurist of reason could debate that

neither Court was correct in their findings granting relieve to petitioner.

All Courts have denied petitioner his Constitutionally Guaranteed Right to "Due

Process" to conviction under the United States Constitution Amendments 5 and 14.

The evidentiary hearing is crucial to reducing the Capital sentence. Under

these same Amendments, petitioner has not been guaranteed a "Full and Fair Hear­

ing" by State and Federal Courts when neither Court performed a "Finding of Fact

or Conclusion of Lav/", which did not give petitioner a chance to rebut with Laws

and Facts to support his claims on the merits during Appeals, guaranteeing pet­

itioner with no chance of relief, even reducing the Capital Sentence. Under the

Sixth Amendment of the U.S. Constitution, petitioner has a right to "Effective

Assistant of Counsel". Counsel was deficient and ineffective v/hen he didn't hire

"Experts" to challenge States theories. Even so more, after being told that the

States only witness had lied about him having sex with petitioners v/ife, Counsel

should have hired "Experts" to show facts regarding the events that took place

in the residense of Clemente, that would have debunked States theories of "Burg­

lary and Intent" dismantling State's case for Capital Murder.

REVERSABLE CONSTITUTIONAL ERROR

This petition is by no means a successive petition and is not some piece

of relitigation, it is a concise shov/ing of why and how all the Appeals Courts

were unreasonable in it's denial of writs and motions. Petitioner from the out­

set has asked for an "Evidentiary Hearing" on the pillow that the State showed

a picture of(state exhibit 49)to the panel of Jurist. The State did not bring

the actual pillow to Trial nor did State or Defense perform any forensics on

the pillow. The State mislead the panel of Jurist into believing that petition-

7

er had "intent" to murder his wife by placing it over her face, using it as a

"BUFFER" and shooting thru it. Petitioner submitted exhibits in all Appeals

to prove he never placed the pillow over his wife's face shooting thru it.

Texas Ranger Brent Davis testified on November 4, 2014, that "the Van Zandt

County Sherriff's Dept. TAMPERED with the evidence before he had his search

warrant." In the 17 volumes of transcripts, the word TAMPERED is no where to

be found by Ranger Davis. Petitioner assures this Honorable Court that Ranger

Davis used the word TAMPERED. The following day, November 5, 2014, the State

had Melonie Smith of the Van Zandt County Sherriff's Dept, testify about the

tampering issue(RR 15 6:10-13:14). However, Ranger Davis' testimony with the

word TAMPERED has been rewitten in the transcripts. If Melonie Smith was there

to clean up the tampering issue, then why remove parts of the testimony of

Ranger Davis saying they TAMPERED with the evidence. Petitioner does not have

proof of this testimony, but petitioner does have proof that there was some

kind of prosecutorial misconduct by removing another statement made by Ranger

Davis. During an "Evidentiary Hearing" on a custodial recording that was

supposedly lost of petitioner saying he was invited to the house where his

wife was at to talk to her and Mioses Clemente, Ranger Davis testified (RR

11 12:4-6)"so I don't know if the recorder never took from either the batter­

ies failing or the recorder not recording at the time of the interview." This

hearing was held on October 22, 2014, before trial without a jury present.

During the Trial on November 5, 2014 with the Jury present, Ranger Davis test­

ified "when I hooked the recorder to my laptop, I turned on the laptop and the

laptop had a malfunction causing it to erase the digital recorder." This test­

imony of Ranger Davis has been removed and replaced with(RR 15 88:5-10)in the

written transcripts. Petitioner has Exhibits 1 and 2 to show this Honorable

Court that 2nd Chair Trial Attomey/Appellant Attorney James Huggler was aware

of the two conflicting testimonies by Ranger Davis, but yet, one of them is

not in the written transcripts because it would give reasonable Jurist and

Appeals Courts a debatable issue into the truth about whether are not the

State was hiding "Exculpatory Evidence from the Jury and the Public." To

further show that the State knew there was a recording, D.A. Chris Martin

for the State tried to side step bringing up the issue of the missing recorded

statement by saying "we won't bring it up and that solves the problem"(RR 10

13:5-13). Before Trial Counsel argued that the State was saying that the Rang­

ers lost the recording and the Rangers were saying the State lost the record8

ing.(RR 10 16:16-17:15) and (RR 10 18:4-6). In the Affidavit for Search War­

rant from Van Zandt County, Peace Officer Ronnie Breathwitt confirms that

there was a recording made, see Exhibit 3, second page hi-lighted portion.

This is also supported by Counsel talking about the Miranda being recorded,

(RR 10 20:20-25). Petitioner does not know if there is a live recording made

of the Trial Proceedings. Petitioner asked Appellant Attorney James Huggler

in 2015 for a copy of the transcripts but Huggler said he had already turned

the Disc back in to the County. Petitioner asked his parents to see how much

the transcripts would cost from the Court, $1400.00 from the Court Reporter,

see Exhibit 5, which were too much for my parents to afford. If there is a

/

live hearing or recording of the Trial Proceedings, it could shed light to

reasonable Jurist of the truth about the prosecutorial misconduct to mislead

them from debating on issues presented. This prosecutorial misconduct is a

direct violation of petitioners right to "Due Process" and "Fair and Funda­

mental Trial" under the U.S. CONSTITUTION AMENDMENTS 5 and 14. Petitioner

has shown 4 times in SHC, 4 times in FHC, 6 times in Traverse, 2 times in

Objections and 5 times in Brief to the Fifth Circuit Court of Appeals why

petitioner should be granted an "Evidentiary Hearing" on the pillow. This

Honorable Court in Townsend v Sain; held, where a petitioner shows the existance of a genuine dispute of material fact, which if resolved in his favor

would grant him relief, and, he has been denied a full and fair hearing in

the State Proceedings a Federal Evidentiary Hearing is mandatory. 372 U.S.

312-313 83 S.Ct. 757. Petitioner had meet the standards for being granted an

evidentiary hearing in all writs of the lower courts. By refusing to grant

the motion and allow petitioner to discover evidence to support his claims,

the Court has denied the Fact Finding process and it's own Fact Finding is

deficient in a very material way, quoting Hibbler v Berridetti; 693 F.3d

1140(2012). Petitioner had Exhibits on why the motion for evidentiary hear­

ing should have been granted in all Appeals Courts. An Affidavit Search War­

rant from the Van Zandt County Sherriff's Dept, of Peace Officer Ronnie Breath­

witt where Deputy Prock who was the first officer to enter the room said in

the Affidavit, "there was a pillow partially over her face" he did not say over

her face, see Exhibit 3 first page hi-lighted. section. The other exhibit sub­

mitted was the autopsy report to the District Court as a motion to expand the

record which was dismissed after the ruling on the § 2254 writ. The autopsy

9

report does not report any pillow material of any kind in any of the entry

or exit wounds. Majestrate Judge John D. Love in his Report and Recommendations(Doc. 22-1 pg. 12)8th line says,"with the fatal blow being as Maples

shot her through a pillow placed over her head". Where did Judge Love get

this statement from, was he just inserting what he thought might have hap­

pened or did he read it in the transcripts(or possibly on a Disc as Appellant

Attorney mentioned). Petitioner received transcripts from the District Court

where Judge Love presides(Ibid at 10)which does not have petitioner placing

the pillow over her face shooting through it. Why is all this important?

Richard Schmidt, Attorney for the State said "I don't know why he used the

pillow, maybe as a buffer, maybe he didn't want to get blood on him". In

opening State said " he puts a pillow over her head, puts his firearm to her

chin and pulls the trigger"(RR 14 16:2-4). Ranger Davis testified, when asked

by Defense if there was a hole in the pillow he said yes(RR 14 165:5-7) which

would indicate that there was an issue previously mentioned before he test­

ified that petitioner placed the pillow over her face shooting through it.

The reason petitibner brings up these issues is because more prosecutorial

misconduct has occurred. The word "BUFFER" has been removed and the state­

ment "he shot through it, killing his wife" has also been removed while the

statement "he puts the firearm to her chin pulling the trigger" has been added.

Petitioner is not seeking an error on prosecutorial misconduct in this Honor­

able Court because petitioner didn't find out about the misconduct until June

of 2019, when petitioner received the transcripts from his parents who pur­

chased them from the District Court, not having the State exhaust the issue

before this Court. Petitioner did not seek prosecutorial misconduct in any of

the Appeals Courts as previously stated. Petitioner is establishing to this

Honorable Court that, if there were not any misconduct(removing testimonies

and replacing testimonies in the transcripts)or(rewording testimony in the

transcripts), Jurist of reason may have debated the facts and issues in a

different manner and possibly granted relief. The pillow issue was never

challenged at trial by Defense. Petitioner had met the "Substantial Showing"

standard for Granting an Evidentiary Hearing in SHC and FHC, further demon­

strating, petitioners "Due Process" rights were violated being that, a "full

and fair hearing" is an element of Due Process. Furthermore, "Reasonable

Jurist" could also debate whether petition should have been resolved in a

10

WJ

different manner, or that issues presented by petitioner, were adequate to

deserve encourangement to proceed further, quoting Scheanette v Quarterman;

482 F.3d 815,818(5th Cir 2007),Miller-El v Cockrell;537 U.S. 322 123 S.Ct.

1029(2003). Jurist of reason could debate whether the petitioner used the

pillow and also whether he had "intent". The 5th Circuit Court of Appeals

Affirmed the District Court’s decision to deny the evidentiary hearing even

when disputed material facts were unresolved. Under Article 1 § 10,13, and

19 of the Texas Constitution and Amedments 5 and 14 of the United States

Constitution, petitioner has a "Due Process" right to be heard. A commonsense reading of 28 § 2254 (d) tells us a review of the facts presented in

trial along with the facts and evidence presented at post conviction, which

includes the 11.07, 2254, and any rebuttal declarations, must be done before

(e)(1) can be considered. Without fact finding per (d)(2), (e)(1) makes no

sence. Without a review of the record as a whole, all the evidence presented

at trial and post conviction and the merits of the claims, (e)(1) can not

operate as congress intended. The State Court has never shown that it has

complied to T.R.A.P.' 73.3. The Respondent has not made any showing of such

compliance either. Petitioner has never been sent 1 document on State Findings

because they didn't do any(see Exhibit 4). When the State referred the District

Court to conduct Findings and Facts and Conclusions of Law, District Court

didn't conduct any either(see Doc.22 at 1, Report and Recommendations). Pet­

itioner had no chance to argue the facts and findings to dispute the findings

on the merits. Petitioner asked his parents to find out how much the trans­

cript for the "Evidentiary Hearing" on the missing costodial recording would

cost and to also purchase the "Facts and Findings/Conclusion of Law" from

the County.(see Exhibit 6). This is when petitioner found out that there were

no Facts and Findings or Conclusion of Law performed by the Trial Court(see

Exhibits 4 and 6). Petitioner found out from another inmate that the full

transcripts could be purchased for half the cost the County wanted, from one

of the Appeals Courts, Ibid at 10. Petitioner recieved the written transcripts

from his parents on or about June 20, 2019. Once petitioner received the

complete 17 volumes of the transcripts, petitioner realizing that after argueing statements and testimonies in his 11.07 and 2254, that were supposed to

have been in the transcripts, had been removed, replaced or reworded. Pet­

itioner did not receive the 2 letters(Exhibits 1 and 2) until May 2020 from

11

his parents. Petitioner was arguing facts that were not in the transcripts due

to them being removed or replaced by State. Petitioner had no chance of being

granted relief due to the misconduct. It is unjust, unlawfull and unreasonable

for State Attorney's to say contradictory statements, use untruthful theories,

unlawful tactic's to persuade jurist to achieve getting the Highest possible

conviction they can get, even when the facts do not support the conviction.

Then, after Trial, remove or change the very statements and contradictory

testimonies of witnesses, allow witnesses to lie, to keep the convicted from

ever having a chance at being granted relief.

Petitioner also showed in Brief for "Request for C.O.A.", 2254 and 11.07

that Trial Counsel was deficient and ineffective for not hiring Ballistics/

Reconstruction and Medical Experts to show the Jury and Public where and how

the theories of the State and the perjury of clemente didn't match the findings

and portrayal of the events of the scene at the resident of clemente. This case

is analogous to Soffar v Dretke, that the Fifth Circuit Court of Appeals heard,

granting relief to Soffar, for Trial Counsel's failure to "Conduct an adequate

pretrial investigation." 368 F.3d 441, 479(5th Cir 2004). It was Unconstitution­

al for Counsel to not hire Experts when Counsel was already aware that clemente

had lied about having sex with petitioners wife and that Prosecutorial Mis­

conduct had occured before Trial with the costodial recording. Counsel blind­

ly accepted the States theories and untruthful accusations of known perjurer

clemente. There were unresolved issues at Trial that Experts could have resolved

and showed the Jury and Public the Facts of the truth instead of theories por­

trayed by the State. Without the Experts the Jury and Public had no choice but

to believe what the State and clemente were persuading them to believe. The

Experts would shown that clemente wasn't lying in bed when he was shot, and

that petitioner and his wife were in a struggle when she was shot. Experts

would have also shown that petitioner didn't use the pillow. Petitioner knows

that these statements would be just speculation on his part, but had Counsel

hired the Experts as he should have, these statements would have became facts

to support the claims on the merits that petitioner did not commit Capital

Murder. Soffar's case results in determining that Defense Counsel failed in

identifying and investigating "the extent to which statements were not cor­

roborated by the evidence pertaining to the offense", and the "inability to

utilize those statements clearly supports ineffective assistance of counsel."

12

Fifth Circuit, District, and State Courts decision to deny relief, is an

unreasonable application of clearly established federal law, contrary to

Strickland v Washington; "If there is only one plausible line of defense,

the Court concluded, counsel must conduct a "reasonable investigation" into

that line of defense, since there can be no strategic choices that render

such an investigation unnecessary" 466 U.S.at 681 104 S.Ct. 2052(1984). Counsel

failing to hire Experts led to the Capital Murder sentence of petitioner. The

6th Amendment of the United States Constitution allows the petitioner a right

to have "Effective Assistance of Counsel." Counsel was deficient and in­

effective for not challenging the States and Clemente's theories and lies.

Evensomore, after being told by the State that Clemente had lied about the

semen found in petitioners wife, this was more a reason to hire the "Experts"

to show facts regarding the events that took place in the residence of Mr.

Clemente that would have debunked States theory of "Burglery and Intent",

dismantling State's Case for a Capital Murder sentence. Petitioner prays this

Honorable Court Grant in all things considered his writ of certiorari and

remand this case back to Van Zandt County for a new trial, where petitioner

will testify to the truth and facts of events.

13

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

V

X

Date:

JuL y. map

Resubmitted,

ID

2QZD

DateT

14