Petition for Writ of Certiorari — Paul Salazar, Petitioner v. Texas

Supreme Court briefJan 12, 2021

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IN THE

SUPREME COURT OF THE UNITED STATES

PAUL SALAZAR

PETITIONER

(Your Name)

VS.

THE STATE OF TEXAS

— RESPONDENTS)

ON PETITION FOR A WRIT OF CERTIORARI TO

FILED

JAN I 2 2021

OFFICE OF THE CLERK

SUPREME COURT, U.S. _|

COURT OF CRIMINAL APPEALS OF TEXAS________________

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

PETITION FOR WRIT OF CERTIORARI

Paul Salazar

(Your Name)

TDCO # 2103B47

Hughes Unit

(Address)

Rt. 2, Box 4400

Gatesvile, TX 76597

(City, State, Zip Code)

n/a

(Phone Number),

QUESTION(S) PRESENTED

?.?aun

GROUND ONE:

DOES A STATE'S INITIAL-REVIEW PDST-CONVICTIDN

COLLATERAL PROCEDURES MEET CONSTITUTIONAL STANDARDS

WHEN THOSE PROCEDURES FAIL TO PROVIDE PRISONERS

THE OPPORTUNITY TO GATHER, PRESENT, AND CONSIDERATION

OF EVIDENCE IN SUPPORT OF AN INEFFECTIVE ASSISTANCE

OF COUNSEL AT TRIAL CLAIM, FOR WHICH THE INITIAL-REVIEW

COLLATERAL PROCEEDINGS WAS THE FIRST MENAINGFUL

OPPORTUNITY TO RAISE AN INEFFECTIVE ASSISTANCE OFF

COUNSEL AT TRIAL CLAIM?

GROUND TWO:

WAS SALAZAR'S TRIAL COUNSELS INEFFECTIVE DURING VOIR

DIRE AND IN FAILING TO OBOECT TO THE CONVICTION AND

SENTENCE FOR COUNT II ON DOUBLE OEOPARDY GROUNDS; AND,

SHOULD THIS COURT'S DECISIONS RELATED TO TRIAL COUNSEL'S

DUTY TO INVESTIGATE (i.e. WIGGINS) APPLY TO COUNSEL'S

FAILURE TO SUFFICIENTLY QUESTION PROSPECTIVE OURORS

DURING VOIR DIRE?

LIST OF PARTIES

[ fj'AIl 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

Salazar v. Lumpkin, No. 5 ;1 9-cv-OI 489-FB (Id . D . Tex.Nov.

Dkt. No. B (STAY OF PROCEEDINGS GRANTED)

2020),

** A substantially similar Petition for Writ of Certorari mas filed

in Charles Lee Mosier, Sr. v. Texas in this Court * * -tt

TABLE OF CONTENTS

OPINIONS BELOW

BURISEffiCITION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

4-1 7

REASONS FOR GRANTING THE WRIT

1 B-40

GROUND ONE::

1 8-34

DUE PROCESS

Salazar's Requests For Relevant Eviderlce (and

Consideration Thereof)

19-22

Gathering ans Submitting Evidence Necessary

Part of Proceddiego

22-23

More Limited Question Than Prior Certorari's Granted 23-26

No Other Federal Remedy

Salazar's Requests Were Ignored

26-31

Due Process Applies

31-33

Conclusion

No Perfect Vechicle

QROUND TWO:

INEFFECTIVE ASSISTANCE OF COUNSEL!

33-34

34-39

CONCLUSION

PROOF OF SERVICE

DECLARATION OF MAILING TO THE COURT

INDEX OF APPENDICES

APPENDIX A

TEXAS COURT OF CRIMINAL APPEALS ! SUMMARY DENIAL

(Nd. WR-90,899-02 / Oct. 14, 2020)

APPENDIX B

144th District Court of Bexar County,.Texas's

Findings of Fact and Conclusionsaof Lam

No. 2014-CR-5303-W1

APPENDIX C

4th District Court of Appeals of Texas i

Opinoin on Direct Appeal

No. 04-16-00743-CR

APPENDIX D

TEXAS COURT OF CRIMINAL APPEALS i SUMMARY DENIAL

0f Motion to STAY and Motion to Supplement the

Writ Record

(No. WR-90,899-02 / Ouly 23, 2020)

Memorandum

APPENDIX E

TEXAS COURT OFDCRIMINAL APPEALS1' SUMMARY DENIAL

□f Motion to Address Procedural DUE PROCESS Concerns

Common in PROOSE Cases (from mandamus case)

(No. UR-90,899-01

/ August 21, 2020)

APPENDIX F

EXTENDED STATUTORY PROVISIONS

Art. 11.07, Texas Code of Criminal Procedure

Rule 73, Texas Rules of Appelates Procedure

TABLE OF AUTHORITIES CITED

PAGE

Aekins v. Stgt§« 447 S . UJ. 3 d 270 ( Tex . Crim . App . 201 4 )

38,39

Atkins v. Clark,

Ballinger v.

642 F.3d 47 (1st Cir.

Precesnike,

Black v. Workman,

709 F.3 d 558

2011)

( 6th Cir.

682 F,3d 880 (10th Cir.

Boumediene v . Bush, 553 U.S.

2015)

2012)

723 (2008)

Burt v. Titlou, 134 S.Ct. 10 (2013)

Case v. Nebraska,

22,24

381

U.S. 336 (1965)

Coleman v. Thompson, 501

U.S.

25,31

722 (1991)

Ex parte Emprey, 757 S.U.2d 771

(Tex.Crim.App.

)

Evitts v. Lucey, 469 U.S. 387 (1985)

Ford v. Wainuright,

477 U.S.

399 (1986)

Gibson v. Jackson, 578 F.2d 1045 (5th Cir. 1978)

Guzman v.,State,

591

25,31

23,25,32

S.W.3d 713 (Tex.App. -0Houston [1st Dist]2019)

Halbert v. Michigan, 545 U.S. 605 (2005)

Harrington v. Richter,

24,35

564 U.S. 86 (2012)

Hicks v. Oklahoma, 447 U.S.

343 (1979)

Johnson v. Mississippi, 486 U.S.

Kyles v. Whitely, 498 U.S. 931

578 (1988)

(1990)

Martinez v. Ryan, 132 S.Ct. 1309 (2012)

1 6,1 B ,1 9,23,24,32

Matthews v. Eldrige, 424 U.S. 319 (1976)

Medina v. California,

505 U.S. 437 (1992)

Montgomery v. Louisiana, 136 S.Ct. 718 (2016)

Morgan v. Illinois, 112 S.Ct. 2222 (1992)

State v. Morales, 253 S.W.3d 686 (Tex.Crim.App.2008)

Morris v. Cain, 1B6 F.3d 581

D . A . Offcie v.

(5th Cir. 1999)

Osboine, 129 S.Ct. 2308 (2009)

1 7,25 , 31

Panetti v.

23,31

Quarterman, 127 S.Ct. 2842 (2007)

Cullen v. Pinholster, 131

S.Ct. 1318 (2011)

19,23,24

Ex parte Pruitt, 233 S.W.3d 338 ( Te x . Cr im . App . 2 0 0 7 )

Sully v. Ayers,

725 F.3d 1057 (9th Cir. 2018)

Swart a. Cooke,

562 U.S. 216 (2011)

Ex parte Torres, 943 S.W.2d 469 (Tex.Crim.App.1997)

1 8

Trevino v. Thaler, 133 S.Ct. 1911

18,19,24,32

(2013)

Valle v. Florida, 654 F.3d 1266 (11th Cir. 2011)

yillareal a . State,

Virgil v. Dretke,

590 S . W . 3 d 75 (Tex.App.

446 F.3d 598 (5th Cir.

Walker v. State, 195 S.W.3d 251

Waco 2019)

2006)

(Tex.App.

San Aaibonio 2006 )

30,36

35-36

Welch v. Beto, 325 F.2d 1016 (5th Cir. 1966)

Wiggins v. Smith,

539 U.S. 510 (2003)

Williams v. Taylor, 529 U.S.

362 (2000)

(1 946)

648 F. 3d 129 (2nd Cir. 2011)

Woods v. Nierstheimer, 328 U.S. 21 1

Word v. Lord,

Yates v. Aiken, 484 U.S. 211

(1988)

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

[ ] For cases from federal courts:

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

the petition and is

; or,

[ ] reported at

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

[ ] is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

; or,

[ ] reported at

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

[ ] is unpublished.

[L^For"

cases from state courts:

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

Appendix A

to the petition and is

or,

[ ] reported at

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

[uH§ unpublished.

The opinion of the---------------appears at Appendix (3 to the petition and is

of'

; or,

[ ] reported at

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

[>~Kis unpublished.

JURISDICTION

[ ] For cases from federal courts:

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

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

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

and a copy of the

Appeals on the following date: -----------------order denying rehearing appears at. Appendix

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

(date)

(date) on

to and including---------in Application No. ----A

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

[4"Tor cases from state courts:

The date on which the highest state court decided my case was Oar /y.t ckJAo.

A copy of that decision appears at Appendix —A---[ ] 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

(date) on ---------------------- (date) in

to and including------Application No. '—A

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

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

U.S. Constitution,

5th Amendment:-

"No person shall... be subject for the same offence to

be twice put in jeopardy of life or limb; ... nor be deprived

of life, liberty, or property, without due process of law ...

U.S. Consitution, 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 the district wherein the crime shall have

been committed ... and to have the Assistance of Counsel for

his defense."

U.S. Constitution 114th Amendment:

"... No State shall ... deprive any psfgon of life,

or property, wi-frijout due process of law ..."

liberty,

APPENDIX "F" contains Article 11.07 of the Texas Code of Criminal

Procedure and Rule 73 of the Texas Rules of Appellate Procedure

STATEMENT OF THE CASE

1 .

The Petitioner, Paul Salazar, was charged in the 144th

District Court of Bexar County, Texas with continuous sexual abuse

of a child.

The allegations were that Salazar sexually abused his

daughter, D.S.

D.S. could only "provide details about the first inciderit,

when she was in first grade[ and] could not provide details about

the latter other incidents."

Rather, when D.S. reported and testified

about other allegations, she referred to "other indidents," ^Chat

would happen", ^hose things would happen

or simply that Salazatr

had "molested" her, spread over different time periods and different

locations.

Yet, those so-called "other incidents" included just

kissing, touching the buttucks, and picture taking; and D.S. often

used general terms, such as,

"molested','1,1 felt "uncomfortable," and

"do stuff," to describe all the allegations. 3 RR 65-66 (moledted,

last time), 132 (same), 152 (last time just kiss), 156-157 (same),

4 RR 14 (focus was fic&t time), 19-20 (same), 24 (same), 42 (told

SANE molested,

"do stuff", and hurt), 75-79 (felt "uncomfortable,"

grabbed butt), 94 ("Its happen I think twice

... first time ...

[then] his house ... but be did it differently .. he took pictures"),

97 (gabbed butt hurt).

Nevertheless, Salazar was charged by indictment with two

separate counts.

count I alleged teeMs Salazar, pursuant to Texas

Penal Code § 21.02, during a period that was 30 or more days in

duration, committed two or more enumerated acts of sexual abuse

The facts and quotes come from the State appellate court's Opinion

on direct appeal, unless otherwise noted. See, Salazar v. State,

No. 04-16-00743-CR (Tex. App. San Antonio October 11, 2017)(available

at http://www.txcourts.gov/4thcoa/) and APPENDIK "C".

against D.S.

Specifically, that Salazar penetrated D.S.'s mouth,

sexual organ,

and anus with Salazar's sexual organ a-eki three acts

cu\4

of sexual contact: Salazr touched D.S.'s gentials, caused D.S. to

touch part of Salazar's genitals, and Salazar touched D.S.'s anus.

Count II alleged that Salazar also exposed his sexual organ to D.S.

In short, because exposure was a lesser incldued offense of Count I,

the State prosecutor had to prove at least three different instances

of sexual abuse, with at least two indidents 30 or more days apart

(in order to avoid a double jepoardy violation).

At trial, the State prosecuting attorney made no election

as to which alleged incidents the State was seeking a conviction

on for which counts

Moreover, both counts alleged "on or about"

dates, with both including September 12, 2013 (the last inciddnt),

and the Court's Charge authorized a conviotion for each count for

In incidentnpiiiidBititpr the (bne&ehtmaratsafititJbBtiniSiCibment.

107, 116.

Meaning,

CR 106-

the Jury could have relied on the same incideont

to convict Salazar in both Count 10 and Count II.

At trial,

explain that D.S.

Salazar's counsel did^dhp&ng an unrealted objection^

"never specified in the forensic [interview] when

she saw [j^alazr's private part], she never said, just that she saw

[ialazar's private part]."

4 RR 10.

Thus, the State trial court

limited outcry testimony to exposuire incidednts that were "part

and parcel of these incidents that we are talking about", mainjly

the first incident.and the outcry testimony was so limited.

3 RR 209,

4 RR 9-1 0 .

Viewing the evidence in the light most favorable to the

eventual gaiHiiytverdicts, the State appellatecourt, on direct appeal,

found sufficient evidence to support both counts.

For Count I,

the evidence was suuficient because "D.S. reffered to

other incidents

during the time period when she was in first and second ggrade,

Wcr

the summer, and a weekend, and occuring at trr-e mother's apartment

and one or both of [Salazar's] residences."

In essence, under the

standard " in favor of the verdict", the State appellate court considered

that the Jury resolved the inference that the "other incidents"

included "sexual abuse" as alleged in the indictment and not just

other conde4t like kissing, butt grabbing, or picture taking.

For

Count II, the evidence was sufficient because the "jury heard testimony

that the abuse occurred at [D.S. Mom's] homesand the two locations

where [Salazar] lived between 2011 and 2013..."

The State appellate

court did not disccibe the abuse, or incident, relied on to prove

exposure.

Dust as the Sjbate appelate court never described an alleged

incident that was solely exposure.

At the end of therday, the State

appellate court had no occassion to consider which specific alleged

incidents the Dury relied opon to convict Salazar for each count.

Prior to jury selection proceeding^ or voir dire, Salazar's

lead trial counsel, Doe D. Gonzales, asked tfhe State trial judge,

"Dudge, how do you typically handle voir dire?", indicating that

trial counsels were unfamilar with how Dudge Rummel conducted voir

dire.

2 RR 3.

Numerous times trial counsels were concerned with

the time they had left to conduct their questioning of prospective

jurors.

2 RR 1 57, 1 70, 1 BO, 1B6.

Yet,

the S-tatfe jjmdla 1 judge assuredd

trial counsels that she was "not ttying to rush you or anything"

and that she did not "want to cut [defense counsel] off"; to the

extent that she offered to "call to get the air extended."

1 70 .

2 RR

Salazar's trial co-counsel, Christian Henricksen, refused

the oportunity to have additional time to question prosepctive jurors.

IMeverhteless , co-counsel speed up his questioning of prosepctive

jurors, because he was worried about the time left, and did nott

question each potential juror individually.

2 RR 1 BO.

In the end,

rather than accept the State trial court's offer of more time to

question prospective jurors, ag^copcounsel felt like he was "out

of time" and asked a "blanket question" about whether any o fifth e

potential jurors thought they "would not be aafaicrjuror on this

case, and haven't told us Sbhat yet..."

2 RR 186.

During voir dire prospectiverjurors number 13, 20, and

22 (as well as 47 &60) all indicated that they could not be fairr

jurors for Salazar's trial,

2 RR 1 57, 1 86-1 B7 .

However, concerned

about non-existent time issues and inspite of those "red flags",

Salazar is trial counsels did nottfollow-up, ain any manner, with

tfttiberpnosecpteive jurors, including prospective juror number 12

who was actually bias as a matter of iiw — who ended up on Salaza's

Moreover, Salazar's trial counsels wasted two peremptory

Jury .

strikes on prosepctive jurors number 20 and 22 (and prospective

jurors numberr47 and 60 were past the jury strike cut off zone used

at trial,

2 RR 207))

Salazr's lead trial counsel, Mr. Gonzales, began voir

dire for the defense and covered topics such as wrongful convictions,

the presumption of innocence, the right to reamin silent asjd the

State's burden of proof, cops protectiong children , w^s children

learn about sex, false outcrys, types of evidence, and the range

offpunishment.

2 RR 116-157.

Trial counsel concluded by asking

about biases against Salazar and whether if "because of something

that has happened in your family or close to you that has caused

you so much grief or angst that you can not be fair to Raul Salazar..."

Sixteen prosepective jurors raised their hands,

2 RR 157.

including

prospective juror number 20 and 22.

10.

Co-counsel, Mr. Henricksen, did the defense's individual

questioning of prospective jurors.

Yet, he still spoke of general

topics, such as the difference from when he mas a prosecutor and

now being a defense attorney and how that affected him in dealing

with sex offenses and false allegations,.2 RR 158-160.

Co-counsel

did get around to begining his individual questioning of prospective

3, 4, and 5 before he strated to worry

jurors and got to No(s) 1,

about time.

The concern about time caused co-counsel

2 RR 160-170.

to "totally llose his] trian of thought" and he opened it back up

to general voir dire by asking if there was "anyone" who could not

hold the State prosecutor to their burden of ^ro-Pf.

2 RR 171-172.

Co-counsel tried to get back on track to asking individual questions

and (fat to prosepective juror Na(s). 6, 7, 8,

and 10.

Once again,

worried about time, co-counsel asked generally if "there [was] anyone

else that has something that you think we should know that we don't

up to this point" and nine prospective jurors responded to that

inquiry .

2 RR 1 80-1 86 .

Meaning, at least 24 prospective jurors

within the jury strike cut off zone, including prospective jurors

number 13, 20, and 22, did not get individually questioned by defense

counsel.

Co-counsel finished by asking:

kind

"I'm pretty much out of time, but just to

If anyone that thinks that,

of blanket question here,

or OuroirNumber 30 or higher that

or Juror Number 20

thinks that you would not be a fair juror on this case

and you haven't told us that yet, please raise your card."

2 RR 186.

cou

To that question, 14 prospective jurors responded they

not be fair, including prospective juror number 13 and 20.

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During voir, dire, propsepective jurors number 5,

11 .

28, 29,

and 39 each indicated, in some manner, that they mould automatically

believe a class of witnesses, namely children.

2 RR 1 67-1 86,

203 .

bJheile at one point trial counsel got close to asking the right

questions calulited to bring out information which would have indicated

a propspective jUBOD5iinabilLtynt(i]limpartially judge the credibilty

of a class of witnesses, namely children; generally, trial counsels

appeared to mix that issue up with the State prosecutor’s burden

of proof and the presumption of innocence.

168-172, 184-186, 192-195, 203-204.

2 RR 167-168, cf.

2 RR

Prospective jurors number 5

and 29 ended on Salazar's Jury and trial counsels wasted two peremptory

strikes op prospective jurors number 28 and 39.

12.

During voir dire red flags were raised about many other

prospective jurors

ability to be fairsand impartial jurors who

could uphold their oaths and the law.

For instance, red flags were

raised when prospective juror No. 4 said his business affairs would

district his attention, when prospective juror No. 41

revealed his

step children had been abused, and when prospective juror No. 43

e xplained that she could not sit in judgment of others.

96-98 , 1 65-1 66.

2 RR 67-68,

As a result of trial counsels not asking more and

better questions of these prosepctive jruors, No . 4

who was distracted

by buisness affairs — ended up on Salazar's Jury and trial counsel

possibily wasted two peremtory strikes on No(s) 41

1 3.

22 , 28

and 43.

Based solely on prospective jurors No(s) 4, 5, 13,

20,

, and 43's responsedsduring voir dire -- without any additional

questioning — they were each challiBngable for cause:

cibl-d.

No. 4 - "not bol-0 to give [his] fair and impartial attention

to this trial" and "my mind would be on those problems that

I have over there versus sitting on a jury and actually paying

2 RR 68, 165-166, cf. 2 RR 166 (NOT

attention and listen"

rehabilitated by '/IF I would hear the evidence...").

No. 5- "I'm going to lean towardd [children witrtieses] no matter

what" and "YEAH" to "automatically going to believe the child

2 RR 167-168, cf. 2 RR 169 (NOT

just because it is a child."

rehabilatated by "I GUESS" to presumption of umnocenoe and

State's burden of proof).

2 RR 186.

No 1 3

"not fair juror on this case."

No . 20

"cannot be fair to Paul Salazar."

2 RR 157.

No . 22

"cannot be fair to Paul Salazar."

2 RR 157.

I don't

"I tend to beleive the child first and then

Ndg 28

think I would be fair", "[the defense] have the burden toi

I know that's

prove him innocent when it comes to a child.

not the law..." and "I would be looking more for you to prove

2 RR 184-185, 192-193, cf. 2 RR 194-195 (NOT

him innocent."

rehabilitated by either "I would thke all the evidence" or

"If [the State] don't prove it, yea, I will find him not guilty"

or "YES" to "follow that presumption [of innocence].").

"bias towards the State ... YES, I think I would see

No. 29

it to protect the child first."

2 RR 185, cf. 2 RR 194-195

(NOT rehabililatated by "It's hard for me to say" if "could

hold the State to their burden of proof.,.").

"not be fair juror

No . 39

going

to fjeel about

how I 1 m

rvS/~ or not it's true."

whet efl-s

rehabilitated by "I think I

would with any other person

or not.").

in this case" and "I don't know

the child speaking about what happen

2 RR 186, 203, cf. 2 RR 204 (NOT

can" too"mS@e a judgment like you

about whether they are being truthful

"cannot sit in judgment of another person..." and

No . 4 3

"I would not fell comfortable judging this man .. my conscious,

2 RR 67, 97-98.

it bothers me."

Sa 1 az*r's trial counsels had an obligation to challenge each of these

prospective jurors for cuase and they had not rasonabily legitimate

strategic exuse to not challenge each of them for cause,

After

all, trial counsels either agreed to exuse or chal/enged for cause

other prospective jurors who were similarly situa&ted and actually

attempted,ffor the wrong reasons, to chalenge No. 28 for cause .

Of these prosepctive jurors, No. 4, 5, 13,

and 29 were on Salazar's

Dury and trial counsels wasted permetory strikes onnthe others.

14,.

The

Jury returhed a verdict of guilty on both counts.

After a punishment hearing, the Jury returned a verdict* for 35

years (no parole) for Count I and 20 years and a $10,000 ffiine for

Count II.

The State trial court sentenced Salazar accordingly and

ordered the sentenced to be served consecutively.

1 5.

Salazar appaled his conviction.

The 4th District Court

of Appeals of Texas held that the evide&n’e mas sufficient to sustain

the convictions.

See, Salazar v.

State, No. 04-16-0074-CR (Tex.App.

San Antonio October 11, 201 7)(available at http://uuuj.txcourts.gov/

4thcoa/) .

1 6.

Salazar filed a State post-conviction application for

urit of habeas corpus.

In that initial-revieu collateral relief

proceeding, Salazar asserted,

in part, that his trial counsels and

trial co-counsel uere ineffective uhen they:

Failed to object on double jeopardy grounds to the conviction

and consecutive sentence for Count II, uhpsnthe State prosecutor

made no election at

trial as to ublisch alleged incidents supported

each count and there uas no testimony that Salazar exposed

himself to D.S. on an isolated incident uitoft no other form

of sexual abuse occurring at that time;

so that, each and every

allegeiliSrncident of exposure uas continuous, incident to, and

subsumed by

part of dhs-am-Sre impulse as

the allegations

of sexual abuse in Count I.

Failed to adequately investigate, or question, prospective

jurors further during voir dire, after multiple prospective*

jurors gave responses uhich raised "red flags" about uhether

they could be fair and impartial jrurors.

guror number 13, uho uas on Salazar J 4 Jury,

For instance,

prospective

indicated that

he would not be a fair juror in Salazar's case; yet, counsels

cJi

did not ask him any invidual follow-up questions, failing to

conduct the most rudimentary inquiry into his abilty to be

fairrand impartial.

Salazar asserted that the reason counsels

failed to conduct a constitutionally adequate investigation

into the prospective jurors

bias and prejudices against Salazar

was because of counsels incorrect understanding of the availbale

resopurces, or time to ask questions,

invesitgate, or question,

availbihelto furhrter

prospective jurors; and,

that the

constitutionally inadequate investigation prevented counsels

from making trueli^y inf ormed,

reasonable, and legitimate tatical

choices of which prospective jurors to^ challenge for cause

and which ones to exercise peremptory strikes on.

Failed to request challneged for cause and make wise use

of all peremptory strikes against prospective jurors when there

was no legitimate tatical excuse to allow them to sit on the

juryr

For example, prospective juror 20 and 22, like prospective

juror No. 13,

indicated that they could not be fair to Salazar,

with no follow-up questions;yet, counsels exercised peremptory

strikes aginst them, when they were challengable for cause

as bias and prejudice against Salazart

Had counsels used challenges

for cause to remove those two, and other,

prospectiviggurors,

counsels would have had at least an additional two peremptory

strikes and been bale to remove other prospective jurors, like

No .

9, who became the jury foreperson, who had originally responded

that she could not be fair (buttwas rehabilitated) and then

quipped that she would be the "best" juror for Salazar's type

of case.

2 RR 157, 177-178.

1 07

In addition to asserting Strickland prejudice,due to the

additional peremptory strikes trial counsels mould have had

mere they not ineffective, Salazar asserted that prejudice

should be presumed.

EErors during voir dire are structural

erroBs, especially when an actually bias juror was on Salazar's

Sury; so that, the Dury was not an impartial adjudicator.

1 a.

Salazar's lead trial counsel, Doe D. Gonzales, who is

currently the elected District Attorney for Bexar County, Texas,

responded in a conclusory fashion that counsels "exrecised

challenges for cause against those venire members that indicated

that, for whatever reason,

they copJid not be fair# to Mr.

Salazar."

Further, that M[t]he list [of peremptory strikes] that was

submitted to the court was the result of trial strategy..."

Counsel did not explain any of the tatical decisions about

individually complained of prospective jurors nor address that

co-counsel often cut off individual questioning of prospective

jurors due to a perceived lack of time, when the State trial

judge, multiple times, offered additonal time to question prospective

j urois g

Counsel appeared to blame Salazar's particpation in

the process for

the decisions; yet,

counsel also pointed out

that Salazar "struggled" with the legal concepts about the

jury (de)selection process.

19.

Trial co-counsel,

Christian Hanricksen, who is currently

an AssistannDistrrict Attorney for Bexar County,

Texas, while

admitting that he "d[id] not independently recall why we chose

to strike who we did, why we challened who we did for cause,

or the basis for the questions of individual panel memebers,"

yiieltfefcls§t3?i! to claim that all d.Briaas "were effective and

s4.‘lJ o( io l-C.

(A eel"

based on soilind strategy."

Co-counsel claimed that their so-called

strategic decisions were "informed not only by information app&bgnt

in the record, but also information such as juror information cards,

non-verbal cues from panel memebers and ansuers given by panel memebers

unidentified in the record."

Like lead counsel, co-counsel appeared

to blamBeSalazar's engagement in the i^oir dire prooess and failed

to either directly addraess the time to question prospective jurors

concern or detail any tatical decisons for individually complained c f

prospective jurors.

20.

For the double jeopardy claim, trial counsel responded

that Salazr "confused the legal principle of double jeopardy with

the State's right to proceed on an indictment alleging separate

find, co-counsel claimed that Salazar,:

offenses."

"attempt[ed] to reframe [a] sufficiency of the evidence

issue [raised on direct appeal] as a double jeopardy

However, the jury and the appellate court found

claim.

that the evidence presented by the State mas sufficient

to support separate allegations of abuse as alleged in

both counts offthe indictment."

That response appeared to folllow the response from appellate counsel

that there was no double jeopardy violation because the State appellate

court found the evidence sufficient for both counts due to D.S.'s

"use[]

[of^ the plural form of wording to express how many time[s] "

the alleged abuse happen.

21 .

The State habeas trial court explictly only reviewed tlyb

affidavits of trial counsel when concluding that counsels were not

ineffective.

See,

APPENDIX "B"

of Law, Conclusions#5.

Findings of Fact and Conclusions

Of course, the State habeas trial court

found that counsels affidavits were "truthful and credible" and

recommended that relief be denied.

Id. Conclusions #§,

Findings

# 5 & #8.

For the double jeopardy claim, the State habeas trial

court concluded that the Texas Legislature t-n-LTfyd that the exposure

count not be subsumed by the acts of sexual abuse alleged in Count I

and that "[a]s stated on appeal,

the court finds that [Salazar's]

conviction in Count II is supported by the record."

#3.

Id.

Finding

The State habeas trial court did not address the State prosecutor's

failure to make an election at trial nor dbtail any evidence from

trial of an allegediijncddent of exposure that was separate from

any other alleged acts of sexual abuse.

Then, for the jury selection

calimsybased on the presumption of sound trial strategy,

the State

habeas court determined that counsels were not ineffective.

Id.

Conclusion #5.

The State habeas trial court did not address the

presumption of

prejudice due to a bias juror being on the Dury

hQC detail (or resolve the factual conflicts) any of the responses

of individually complained of prospective jurors.

trial counsels'

For instance,

claimed to have challenged for cause all prosepective

jurors that indicated they could not be fair to Salazar and the trial

record revealed that, inspite of indicating that he could not be

a f-Lar juror in Salazar's case,

prosepctiaee juror number 13 was

on Salazarjs Jury.

22 .

The writ irrecord mas forwarded to the Texas Court of Criminal

Appeals ("TCCA"). . However, the writ record did not include the

exhibits attached to Salazar's State habeas writ application (such

as the ttrial rrecord) and other pleadings filed by the parties.

Yet, on Duly 23, 2020 the TCCA denied a motion to supplement the

writ record with those missing items.

See, Ex parte Salazar,

No . UR-90,899-02 (Tex . Crim.App. Duly 23, 2020)(NOTICE)(available

at http://www.txcourts.gov/cca/).

1 5

Neverhteless , supple rot na-1 clerk's

records were filed with the TCCA, which included most of those exhibits

and pleadings that were orignally missing.

See,

Ex parte Salazar,

No. UR-90,899-02 (Tex . Crim.App. August 6, 2020)(NOTICE)(available

at http://uJUJUJ.txcourts.gov/cca/), Ex parte Salazar, No. UR-90,899-02

(Tex.Crim.App. August 1 9 , 20 20 ) ( N 0TICE ) ( a v aldab le at h tt p ://ujujuj .

txcourts.gov/cca/) .

23 .

Salazr also

requested the TCCA to ORDER jrfhat the jury

strike list and jury information cards be made a part of the writ

record.

The TCCA denied both a motion to supplment the writ record

and motoin tppSTAY (pusuant to Tex. R. App.

Proc. 73.7) concerning

this mssing material evidence necessary to evaluate and prove Salazar's

ineffective assistanceoof counsel at trial claims.

See, Ex parte

Salazar , No . UR-90,899-02 (Tex . Crim . App.Duly 23, 2020)(NOTICE)(available

at http://www.txcourts.gov/cca).

24.

For instance, in the motion to STAY it was argued,:

"The point is that Salazar has the burden of proof

to present evidence in this habeas procednJngs demonstrating

he is entitled to relief, but no way to require production

As the U.S.

of that evidence without the court's help.

Supreme Court has recognized,:

"... while confined to prisoAn, the prisoner is

in no postion to develop the evidentiary basis for

a calim of ineffective assistance , oifiRiich often

turns on evidence outside the trial rrecord."

Indeed ,

Ryan, 132 S.Ct. 1309, 1317 (2012).

See , Martinez v._______

Due Process and Equal Proetection demand that, even in

post-comuiciton habeas proceedings, that prisoners be

able to gather the record necessary to litigste his or

How would Slazar be given a meaningful opportunity

her claims,

to be heard, as required by Due Process, if he has no

way to aquire the evidence necssary to meet his burden

Thus, Due PRocess should require

of |poof in this case?

that the convicting court insure the jury strike list,

jury cards, and additional detailed testimony of counsels

(cited omitted)

is made a part of the writ record."

25.

Likewise,

in the corresponding mandamus case to Salazar's

habeas writ application, the TCCA denied a motion to address procedural

due process concerns commpn in PRO SE cases.

bJR-90,089-01

See, In Re Salazar,

(TexdCrim. App. AUgust 21 , 2020) (NOTICE) (available a at

http://www. txcourts.gov/cca/) .

26.

In the TCCA Salazr OBJECTED to the State habeas trial

court's Findingd of Fact and Conlcusions of Law.Specifically,

Salazar's SUPPLEMENTAL OBJECTIONS Salazar OBJECTED that the State

habeas trial court "solely relied on and adopted facts from Salazar's

attorney's affidavits and wholly failed to refer to the record from

trial

[which was attached as an exhibit to Salazar's State habeas

writ application]."

Salazar explained how he could not meet his

burden without the court considering the t'frial record that was

<\f\

attached as n-a exhibt to the writ application.

For

examjble ,

the

trial record was necessary for the court to make a finding about

whether the evidence admitted at trial would support a separate

convicntion and sentence for both offenses because there was an

alleged inriideent of exposure separte and dinstinct from any other

alleged abuse.

Just like, the trial record was necessary to demonstrate

what questions were askedsof the individually complained of prospective

jurors and their responses.

Salazar cited to Trevino and that the

Supreme Court had determined that a post-conviction habeas writ

application in Texas was the first (and only) meganirvful opportunity

to raise an ineffecitve assistance of counsel at trial claim.

Thus ,

Siiigibr argued that the procedures followed should adhere to the

constitutional norm of fairness and due process that applies on

direct appeals.

Then, Salazar cited toe D.A. v. Osborne , 129 S.Ct.

23DB, 2320 (2009) and that a State's post-conviction relief procedures

must be adequate to vindicate the substantive rights provided.

REASONS FOR GRANTING THE PETITION

GROUND ONE:

DOES A STSIE'S INITIAL-REVIEW POST-CONVICTION

COLLATERAL PROCEDURES MEET CONSTITUTIONAL STANDARDS

WHEN THOSE PROCEDURES FAIL TO PROVIDE PRISONERS

THE OPPORTUNITY TO GATHER, PRESENT, AND CONSIDERATION

OF EVIDENCE IN SUPPORT OF AN INEFFECTIVE ASSISTANCE

OF COUNSEL AT TRIAL CLAIM, FOR WHICH THE INITIAL-REVIEW

COLLATERAL PROCEEDINGSWAS THE FIRST MENAINGFUL

OPPORTUNITY TO RAISE AN INEFFECTIVE ASSISTANCE OF

COUNSEL AT TRIAL CLAIM?

The whole p&ajiiit of this Court's decision in Trevino was that

Texas i direct review procedures did not provide prisoner's a "meaningul

opportunity" to litigate an ineffective assistance of counsel at

trial ("IACT") claim because there was not an adequate opportunity

to investigate the claim or to develop the record in support of

such a claimjaand,

"in Texas

a writ of habeas corpus i

state collateral proceedings ordinarily

issued in

is essential to gathering

the facts necessary to ... evaluate ... ineffective-assistance-oftrial-counsel claims. t n

1 91 8-1 91 9 , 1 921

See, Trevino v. Thaler, 133 S.Ct. 1 911 ,

( 201 8)(quoting Ex parte Torres, 943 S.W.2d 469, 475

( TesSsBrim . App .1 997) ( en banc ) ) ( brakets omitted).

Due to Texas' direct

review procedures not affording, as a systematic matter, meaningful

review of a claim of IACT, this Court found an exception to Coleman

and allowed a prisoner to overcome the failure to exhaust and a

procedural default for not raising a substantial claim of 16CT during

"initial-review collateral proceedings."

132 S.Ct. 1 309, 1 31 5, 1 31 8 ( 201 2).

See, Martinez v. Ryan ,

But, what about when a prisoner

does exhaust a claim of IACT using Texas I

intial-review collateral

proceedings and those procedures did not provide the prisoner an

opportunity to gather facts in support of that claim, to expand

the record with that

the record with that sought after evidence, nor did the State habeas

(trial) court even consider the evidence that was submitted by the

prisoner?

The result is the same as that feared in Trevino and

Martinez :

the prisoner will have been "deprive {id]

... of any

[meaningful] review of that claim at all" by any court.

See,

[

Trevino,

133 S.Ct. at 191B (citing Martinez , 132 S.Ct. at 1316).

That is especially true because review by a Federal habeas

court would initially be limited to the State court record.

Sullen v. Pinholster, 131

See,

S.Ct. 1 31 B (2011).

SALAZAR'S REQUESTS FOR RELEVANT EVIDENCE (AND CONSIDERATION THEREOF)

In Salazar's case, there were motions filed during the initialreview collateral proceedings asking for the State habeas trial

court's help in gathering evidence in support of Salazar's IACT

calims.

For instance, the memorandum,of law filed with Salazar's

State habeas writ application explained that, in support of the

claim that trial counsel and trial co-counsel were ineffective during

voir dire, or jury selection,

Salazar had to ffimklae educated guesses

on which party [peremtory] struck which prospective jurors" because

he " d [ i d ] not have access to the jury strike list[*r|)tf tSadfedgpa mot

raofiomat.eqoestidg that the jury strike list and the juror information

cards be made a part of the writ record was filed with (and attached

to) Salazar's State habeas writ application.

However, the State

habeas trial court ignored that motion and all requests for a ruling

on that motion.

Thus, the writ record forwarded to the Texas Court of Criminal

Appeals ("TCCA") did not include the jury strike lists nor the juror

information cardes, which were vital to Salazar's S0CT claim.

Moreover, even the exhibits, including the trial record, that

were attached to Salazar's Stateehabeas writ application, were not

originally forwarded to the TCCfl.

In fact, the State habeas trial

court's Findings of Fact and Conclusions of Law, which were adopted

by the TCCfl, fiai’jfeed to even mentioibnthe trial record and felied

solely on the post-conviction affidavits of Salazar's counsels.

Therefore, it is evident that the State habeas trial court did not •

even consider the evidence from the trial record, which Salazar

was able to present,

that was vital to Salazar's IflCT claim.

For

example, the 5tate habeas trial court did not consider that the

State prosecutor never made an election at 4 "tr i a 1 as to which alleged

incidents the State was seeking a oonviction on for each count (or

that there was no evidence of an alleged incident of exposure that

was totally separate from any other alleged abuse).

Additionally,

the State habeas trial court did not consider the propsepctive jurors

responses during voir dire

like prospective jucor number

who

responded that he could not be a tf'fair juror on Balaza's case .

Then, intially, the TCCA denied motions to supplement

the

record and to STAY the habeas proceeding in order for the missing

items to made a ppart of the record (including the attachments to

Salazarjs State habeas writ application)and additional, more detailed,

affidavits from trial counsels^.

(Tex.Grim.App. Duly 23,

See, Ex parte 5alazar,

No. UR-90,899-02

2020)(available at http://www.txcourts.gov/cca/).

4-ke

Nevertheless,

Salazar was abl© to get the writ record supplemented

with the trial record and other exhibits that were attached to his

State habeas writ application.

However, the TCCA never mpde any

attempts to have the jury strike list or jury information cards

made a part of the oritriSecord;

as well, as no additions affidavits

were ever order from Salazar's trial counsels.

^or

Salazr OBJECTED fc'fa the TCCA &o all of these failures of the

State habeas trial court and the TCCA in failing to provide procedures

for him to g<jather and expand the record with the missing items

which were veital to proving his IACT claims and the failures of

the State habeas trial court to even consider the exhibits Salazar

did present, like the trial record.

Those failure^made it pratically

impossible for Salazar to overcome the strong presumption that his

trial counsels

M I yendeiied

adequate assistance and made all signficant

decisions in the exercise of reasonable professional judgment. i m

See, Burt v.

Titlow, 134 S.Ct. 10, 17 (2013)("it should go without

saying that the absence of evidence cannot overcome the

strong

presumption that counsel's conduct [fell] within the wide range

of reasonable professional assistance. i ii )(citeoomitted)) .

Afterall,

it was the trial record which demonstrated that there was no evidence

at trial of an alleged incident of exposure separate and distinct

from any ofhthe alleged acts of sexual abuse alleged in Count I;

so that, trial counsel was ineffective to not object to the conviction

and consequtive sentence in Count II.

And, the trial record demonstrated

that Salazar's trial counsels did NOT, as they claimed in their

affidavits,?"

"exerciseddchallenges for cause against those venire

members that indicated tbat, for whatever reason, they

Likewise, Mr. Henricksen

could not be fair to Mr. Salazar,

and I exercised our peremptory challenges to exclude those

individuals that expressed a belief that they could not

be fair."

See, APPENDIX "B" - Findings,-ATTACHMENT "I"

Counsel.

Affidavit of Tiral

Indeed, how coud a court review Salazar's claimsthat his

trial counsels were ineffective in their exercising o^ peremptory

strikes without the jury strike lists being made a part of the writ

record, in order to know which prospective jurors counsels did actually

strike?

Not to mention that trial counsels' post-convction affidavits

failed too address their "strategy" as to individually complained

of prospective jurors and failed to address the very specific times

when counsels did not follow-up with additional questions when a

prospective juror indicate^ they couald not be fair to Salazar (nor

the fact that counsel appeared to be worried about a lack of time

when the State trial judge offered additional time to question prospective

jurors) .

It is concerns like JHhese which caused the procedure provided

in Texas' initial-reivew collateral proceedings to npeivent a "meaningful

opportunity" to litigate IACT claims and violated DUE PROCESS.

]

GATHERING AND PRESENTING EVIDENCE NECESSARY PART OF PROCEDURE

This Court has had occassion to say that one of the "attributes

of any constitutionally adequate habeas corpus proceeding" is the

habeas court's "authority to admit and consider relevant exculpatory

evidence that was not introduced during the earlier proceedings"

See, Boumediene v. Bush,

553 U.S. 723, 779, 7B6 (2008).

Or,

the words of former Custice Brennan, to be an adequate corrective

process, State collateral review proceedings ^should provide for

full fact hearings to resolve dispp&ed facts, and for compilation

of a record..."

See, Case v .

(BRENNAN, 3., concurring).

Nebraska^,3B1

U.S.

336,

347 (

)

And, it is clearly established Federal

law , for at least a State's post-conviction pre-execution sanity

proceedings, that a basic requirment of dues' process and an opportunity

to be heard is the "opportunity to submit evidence and argument..."

See,

Panetti v .

Quarterman, 127 S.Ct. 2842, 2856 (2007)(quoting

Ford v. Wainwright, 477 U.5. 399, 427 (1 9 8 6) (POUELL, 0., concurring)).

Not to mention, until the AEDPA, 2B U.S.C. § 2254(d) used to explictly

require 8a full and fi-er hearing" in State court as a prerequiste

to a Federal habeas court's deference to State court fact findings.

And, while this Court has recognized that a comBtitu^iosnlly

sufficient investigation, or gathering of evidence, and ffhe ability

to expland t h e record are vital to a meaningful opportunity to

litigate an ineffective assistance of counsel at trial claim,

this

Court also recognized that,:

"Uhileeconfined to prison, the prisoner is in no

position to develop the evidentiary basis for a claim

of ineffective assistance, which often turns on evidence

outfcside the trial record."

See, Martinez, 132 S.Ct. at 1317.

Yet, when a prisoner chooses

to exhaust a claim of IACT during intial-review collateral proceedings

in State court, review by the Federal habeas court will be limited

to the State court record and the evidence the prisoner was able

to gather and expand the record with in State court.

See, Pinholster,

|21,S.Ct. at

Meaning, if the St&tee courts did

not provide prisoners with

a meaningful proceudres to gather and submit evidence supporting

an IACT calim during intial-review collateral proceedings, there

is a reajftdanger Is'that no court will ever perform any meanin^flill:

review of such a claim.

MORE LIMITED QUESTION THAN PRIOR CERTORARI15 GRANTED

Although

seA- times it is waning, it remains true that,:

pjreethb

"Because the scape of the state's obligation to

provide collateral review is shrouded in so much uncertain

uncertainty, ... this Court rarely grants review at this

stage of the litigation even when the application for

state collateral relief is supported by arguably mertorious

federal constitutional claims."

See, Kyles v. Whitely, 498 U.S. 931, 932 (1 990) (SIEMENS,

in denial of application for stay).

Nevertheless,

3., concurring

at least twice

this Court has gratned certiorari to review what constitutes an

adequate corrective process for state collaterial review.

Casey.

See ,

Nebraska, 381 U.S. 336 (1 965), Woods v. Nierstheimer ,

Passage of the AEDPA, which barrs relitigation

328 U.S. 211, 217 (1946).

of Federal Constitutional claims priorly litigated in State collateral

review proceedings

and requiring exhaustion in State courts

unless the prisoner meets standdrd that is difficult to meet, because

it was meant ot be difficult to m e &t, Harrington v, Richter , 562 U.S.

86, 102-103, 131

S.Ctr.770 (2012), only hieghtens the need for «

-ftiis Court to grant certiorari to address just what procedureal process

prisoners are due during intial-review State collateral proceedings.

As mentioned,

that is especiually true because the AEDPA limits

Federal habeas courts review to the State court refood.

Pinholster, 131

See ,

S.Ct. at

Most importantly, t$his Court has recognized,timplicltly if

not explictly, the importance of a meaningful opportunity for a

prisoner to litigate an IACT claim during intial-review collateral

proceedingsSee, Trevino, 133 S,Ct, at

, Martinez, 132 S.Ct.

While m=reqpq3 like Case and Woods embraced the broad questibnn

of adequate corrective processes ofr all State collateral review,

herein the question is limited to the constitutional adequate correl

corrective process for raising an IACT claimin a State's intial-

review collateral proceeding.

Moreover, the concern is NOT whether the Constitution requires

States to provide post-conviction remedy generally.

Rather,

" [e]ven

if a State need never provide a post convition means of challenging

the constitutionality of a conviction or sentence, if it ehooses

to do so,

the Due Process Clause might require that the chosen means

be full and fair."

See, Randy Hertz and Dames S. Liberman,

Federal

Habeas Corpus Pratice and Procedure, 2019 Edition § 7.1[bl (p. 403)

(Matthew Bender)(citing Swartout v. Cooke, 562 U.S. 21 6, 220 (201 1 ) ,

District Attorney's Office for the Thjird Judicial District v.

557 U.S.

52, 67, 69 (2009), Halbert v. Michigan,

Osborne,

545 U.S. 605, 610

(2005), Evitts v. Lucey, 469 U.S. 3B7, 393 (1989)).*

Then ,

just

like in Mattinez and Treviflop this Court in Coleman recognized that

this dame con ^itutional principle -- meaningful direct appellate

review procedures — might apply to State post-convicion procedures

whenever it was the case that "state collateral review is the first

place a prisoner can present a chajlenge to his concivtion" and

thus, whenever,

the prisoner's

501

"a state collateral proceeding may be considered"

ii i one

and only appeal. ! II

U.S. 722, 755-756 (1 991 ).

See, Coleman,v. Thompson,

Indeed, this Court hadsgranted prisoners

relief in similar circumstances when state collateral proceedings

uj<2,re

tt-e-B the first opportunity to raise the Constitutional violation.

See, i.e., Montgomery v. Louisiana, 136 S.Ct. 71B,

Johnson v. Mississippi, 486 U.S.

4B4 U.S. 211

729 (2016),

578 (19BB), Yates v.

(1 98 B) , Ford v. Llainwright, 477 U.S.

Aiken,

399 (1 986).

NO OTHER FEDERAL REMEDY

Also of import is that a § 2254 habeas federal petition does

not provide an avenue for the Federal courts to resolve the consitutional

adequacy of State collateral review proceedings.

Florida ,

654 F. 3 d 1 266, 1 267-1 260 (1 1 th Cir.

See i.e, Valle v.

2011), iilocd v.

Lord,

648 F. 3d 1 29, 1 31 -1 32 (2nd Cir. 2011), Morris v. Cain, 106 F.3d 581,

585 n. 6 (5th Cir. 1999), Gibson v. Jackson,

1047 (5th Cir. 1978).

578 F.2d 1045, 1046-

Nor would a con^itutionaly deficient State

collateral review proceedditie overcome the AEDPA's bar to relitigation

of Federal constitutional claims.

See i.e., Sully vb Ayers, 725

F. 3d 1 057, 1 067 n. 4 (9th Cir. 201|), Ballinger v. Prelesnike,

709 F . 3 d 550, 562 ( 6th Cir. 2015), Black v. Workman, 682 F.3d 880,

(10th Cir. 2012),

aff'm after remand, 485 Fed.Appx 335 (10th

Cir.20112), Atkins v. Clark,

642 F.3d 47, 49 (1 st Cir.2011).

All

meaning that certorari review by this Court, after the inital-review

collateral proceedings, is the only opportunity for Federal review

of the constitutional adequacy of those State courts procedures.

SALAZAR'S REQUESTS WERE IGNORED

Here is the bottom line.

Salazar's State habeas writ application

asserted that his trial counsel and trial co-counsel were ineffective

when counsels failed to ask prospective jurors additional questions

when specific prospective jurors indicated that they had a bias

or prejudice and would be unfair towards Balazar.

For instance ,

when propsepctiosajuror namber -2J0 indicated that "[could ^not be

ff j§ to Paul Salazar even before this case starts [' , I " Salazar ' s

trial counsels made

further inquiry whatsoever into why, or the

extent of, that prospective jurors bias and prejudice against Salazar's

case.

Salazar's writ

application also asserted that his trisSi

counsels were ineffective in their use of permetory strikes and

challenges for cause.

Indeed, without a constitutionally

sufficent

investigation, or proper questioning of prospective jurors,

Salazar's

trial counsels could not make truely strategic deicions of which

pBQpsepctive jurors to challenge for cause and which to exercise

peremtory strikes against.

Salazar explained in detail

more 4b

than ten prospective jurors that trial counsels should have questioned

further, nine prospective jurors that trial counsel should have

challenged for cause, and at least three prospective jurors that

trial counsel should exercised permetory strikes for (had they had

addiirtonal strikes).

In doing so, Salazar had to assue, or make

educated jjuseses, about which prospective jurors trial counsels

did actually exercise peremtory strike on (as Salazar did not have

access to the jury strike lists).

Salazar's lead trial counsel simply respnded that counsels " were

able to cover general principles of law" "within the time allotted

by the [State trial] court" and,:

"exercised challenges for cause against those venire

members that indicated that, for whatever reason, they

could not be fair to Mr. Salazar,

Likewise, [we] exercised

our peremtory istriktees] to excuse those individuals that

expressed a belief that they could not be fair."

See,

APPENDIX "B"

Fidings, ATTACHMENT "I":

In the same vain,

Salazr's trial co-counsel responded that they "obtained significant

information from jbheepjaael" (including "tone, body language,

and

other non-verbal ques") and that,:

1-i-rrrl t" frbi d s^e-d—ETh

[ hrsi—kn-&w 1 e riga—o-F—E“ttTB

T-rtmmnn prnr-tinr »

" -£ B fi a s e d on [his] knowledge of [their] common practice,

limited memory of voir dire in this case and a review

oftfthe ^record, the decisions that we made in this case

dealing with questioning of panel members, challenges

for cause,aad peremptory strikes were effective and based

on sound strategy."

See, APPENDIX "B"

Findings,

ATTACHMENT "II".

At least trial co-

counsel admitted that he " d[id] not independently recall why we

choose to strike who we did, why we challenged who we did for cause,

or the basis for questioning of individual panel memebers."

Id .

Yet, co-counsel also pointed out that Salazar's trial counsels relied

on the information from the "juror information cards" when making

their strategic decisions concerning jury selection.

Thus , neither of Salazarjs trial counsels offered an explanation

for failing to further question specificacomplained of prospective

jurors when those prosSfictive jurors indicated that they had a bias

or prejudeice aginst Salazar or relevant legal principles.

In fact,

the trial record demonstrfates that trial counsel was incorrect

in his belief that all venire members who indicated they could not

be fair to Salazar were either challenged for cause of peremtory

struck.

Neither did either counsel address the fact that atf h e trial

record revealed they cutt-off a ddft’bnal questioning of prospective

jurors because they were concerned about the time they had, when

the State trial judge had explictly offered counsels additional

time to question prospective jurors.

Moreover,

as mentioned, the

trial record demonstrates other specific juicers whoihbd some bias

or prejudice against Salazar's case and either trial counselfs exercised

peremtory strikes against them instead of challenges for cause,

or counsels left them on the Bury (inclduing the Bury foreperson).

The point is that, in order to meet his burden of proving that

his trial counsel were ineffective,

S a1a zt,

at the least, needed

the State habeas trial court to consider the trial record, which

was an exhibit to Salazar's State habeas writ application.

Yet,

the State habeas trial courts Findings, adopted by the TCCA, explictly

solely rejpliefl apon the post-conviction affidavits of

Salazar's

trial counsels in concluding that counseles were not ineffective.

See, APPENDIX "B"

Findings#5.

Likewise,

Salazar needed to have

the juror strike list and juror information cards made a part of

the writ record in order tooshed more lidjht on the information trial

counsels used to mbke decisions during voir dire and exactly what

those decisionswwere .

Yet, the Stite habeas trial1court

and the

TCCA refused to either supplement the writ record with those items

or to order the State habeas trial court to help Salazar gather

Then, niether

t|hose items and make them parttof the writ record,

the TCCA or the State habeas tria/dcourt would require trial counsels

to file addtional affidaivts addressing thediirfailure to ask further

questions (and time concerns) and what tatical rieassniffin&he had for

leaving specific indvidually complained of prospective jurors on

the Dury .

In like manner, the State habeas trial court failed to consider

the trial!record for the double jeopardy claim, which Salazar asserted

his trial counsels were ineffective to not object to.

the Findings, which werfe a adapted by fc-f’ h e TCCA,

In making

the State habeas

trial court solely considered the opinion of the State appellate

court ifnorn the direct appeal.

See ,APPENDIX "B"

Etbndlugifin #3.

However, the State appellate court was fallowing a different standard

o^ viewing the evidencde in the light most favorable to the verdict

that is not directly applicable to the double jeopardy claim,

was the ttrial record which would have demonstrated both that (1)

there was no evidence offered at trial of an alleged incident of

exposure that was separate from the allegations of sexual abuse

in Count I, and (2) tbbt because the 5tate prosecutor did not make

an election as to which conduct the State was relying for a conviciton

-j-haf

on each count, 4e+rlt it was impossible to determine what specific

indidents the Jury relied upon to conviction Salazar in Count I

and that the Jury did not ceibyidarthe same incident to convict Salazar

in Count II.

Therefore, when the State court failed to consider

the exhibits Sftalazar was able to present, the court prevented Salazar

fropm proving his IACT claim.

Salazar specifically comaplained th’at these actions prevented

him foam meeting his burden of proof, under Strickalnd,

review collateral proceedings.

In his motion to STAY,

fWeAWfe

Pro teoLur*,

in the ioibialfiled pursuant

to Rule 73.7 of the Texas Rules of ■QjJidonB-e-y^ Salazar pinted to the

decisions of this Court in TfievinoS and Martinez; and, he aijjjagd

that "because this 11.D7 habeas writ application was Salazar's first

and only opportunity to raise these grounds, therprocedures followed

should adhere to the constitutional norm of fairness and due procees

that apply on direct appeal.

(citing BColeman).

Then Salazar asked,:

"How would Salazar be given a meaningful opportunity

to be heard, as required by Due Process, if he has no

way to aquire the evidence necessary to meet his burden

of proof in this cease?"

Finally,

Salazar cited the 5th Circuit's decision in Virgil v. Dretke,

446 F.3d 59B, 609 (5th Cir. 2006).which faulted trial counsel and

the “ft exas courts for not responding with a s-p^eificlr tatical reason

for keepingga prospective juror on the Oury who stated daring voir

dire that they could not be fairsand impati^il

The TCCA explcitly

denied those DUE PROCESS concernsrraised in the motion to STAY (and

motion to supplement the writ record) and implictly denied Salazar's

OBJECTIONS (supplemental) when thetTCCA denied Salazar's State habeas

writ application.

DUE PROCESS APPLIES

It is well-established that,

" [ uj ] h e n a State opts to act in a field where its

action has significant disreetionary elements [like proving

providing appeals, whertnit does so] it must nonetheless

act in accord with the dictates of the Constitution —

and, in particular, act in accord with the Due Process

Clause."

3 B 7 , 401

(19 B 5 ) , Hicks v.Oklahoma,

447 U.S. 343, 346 (1 979), Welch v, Beto,

355 F . 2 d 1 01 6, 1 020 (5th

See, Evitts v. Lucey, 469 U.S.

Cir.1 966).

This Court has implictly acknowledged that the principles

underlying the decison in Evitts should apply to initial-review

collateral proceedings, which is the first place a prisoner can present

a specific challenge to his or her conviction, because it is similar

topa prisoner's "one and only appeal."

756 .

See , Coleman,

501

U.S. at

Indeed, this Court had acknowledged that, :

"the question is whether consideration of [the

, '

prisonsEfs] claim within the framework of the g&t-t-e i>s

procedures for post conviction releif offends some princple

of justice so rooted in the traditions and conscience

of our peopii as to be ranked as fundamental or transgresses

any recognized principle of fundamental fairness in operation,

federal courts may upset a S

p o s t conviction relief

procedure only if they are fundamentaly inadequate to

vindicate the substive rights provided."

See, Osborne, 129 S.Ct. at 2319-2320 (citing Medina v. California,

505 U.S5.437, 446, 44B (1992)(quotes omitted)).

And,

in Ford

Justice Powell -- who's opinion is clearly established Federal law,

Panetti v, Quarterman, 127 S.Ct. 2B42, 2856 (200&)

~b\

citing to

Mathews v.

Eldridge, 424 U.55.319 (1976),

determined that pursuant

to due process, and an opportunity to be heard, applicable to State

collateral review proceedings (in death penalty cases), basic fairness

demanded the ability of the court to receive and consider evidence

submitted by the prisoner.

424 (1 986) (POWELL,

See,

Ford v. Wainwright,

3., concurring).

477 U.S. 399,

As a forti, the prisoner must

have a meaningul opportunity to gather that evidence.

Whether under Mddaina ar Mathews,

the ability of a prisoner

to gather evidence in support of an IACT calim during intial-review

collateral proceedings is a fundamental requistie of due process

necessary to vindicate one's bedrock right to counsel.

as much held this in Martinez and Trevino.

This Court

In Martinez this Court

determined that,:

"Claims ofdineffective assistance at trial often

require investigative work and an understanding of trial

strategy.

While confined to prison, the prisoner is dim no

position to develop the evidentiary basis for a claim

of ineffective assistance, which often turns on evidence

outside the trial record.

Ineffective-assistance claims often depend on evidence

Direct appeals, without

outside the trial record,

evidentiary hearings, may not be as effective as other

proceedinggsfor developing the factual basis, for the claim."

See, Martinez, 132 S . Ct. at 1 31 7-1 31 8 .

Once again, this was the

very reason that Texas' direct review procedures, as a systemic

matter, failed to afford a meaningful opportunity for review of

a IACT claim.

See, Treviono, 133 S.Ct. at 1918-1919.

The point

is thkt this Court has held that,:

adequateaassistance of counsel

"The right involved

is similarly and critically important.

at trial

both instances pratical consideration, such as the need

for a new lawyer, the need to expand the trial court record,

and the need for sufficient time to develop the claim,

? intial consideration of the claim during

argue strongly

collateral, rather than direct, review."

Id . at 1 921 .

This case simply asks the next question, what if the

State's initial-review collareal relief procedures do not allow

prisoners constitutioanlly adequate procedures to develop the record

and meet their burden in pleading and pvercoming the strong presumption

that counsel was effective?

CONCLUSION - NO PERFECT VECHICLE

This is not an isolated incident innthe breakdown of Texas

initial-review collateral relief proceedings.

Morgan . No.

-----------A

—

(U.S.

S.Ct.

See i..e,

Cody Ooseph

)(TCCA No. Ur-89,438-01 ) ,

Morgenstern v. Texas, No . 17-5892 (U.S. S.Ct. duly 11, 2017(filed),

Reed v. Texas, No . 17-5047 (U.S. S.Ct. Oct. 2, 2017), Crespin v.

Texas , 136 S.Ct. 359 (U.S. S.Ct. Oct. 19,

Emprey, 757 S.U.2d 771,

776 (Tex.Crim . App .

2015);