Petition for Writ of Certiorari — Samuel Adkins, Petitioner v. Texas

Supreme Court briefFeb 9, 2023

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0781

In The

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Supreme Court, U.S.

FILED

SUPREME COURT OF THE UNITED STATES

FEB - 9 2023

OFFICE OF THE CLERK

SAMUEL ADKINS,

Petitioner,

THE STATE OF TEXAS,

Respondent.

On Petition For A Writ Of Certiorari

To The Texas Court Of Criminal Appeals

PETITION FOR A WRIT OF CERTIORARI

Samuel Adkins

Pro Se Petitioner

TDCJ #1927447

French M. Robertson Unit

12071 FM 3522

Abilene, Texas 79601

RECEIVED

FEB 1 4 2023

9r,FD'glM0EFcT55™

QUESTIONS PRESENTED

Petitioner, who was victim of long-term sexual abuse by his

stepfather, was convicted of aggravated sexual assault and

sentenced to 65 years in the Texas Department of Criminal

Justice. During the time that he was awaiting trial, Petitioner

became embroiled in a conflict with his court-appointed counsel

and refused to communicate with his attorney or anyone from his

office in any way. Prior to trial, at numerous pretrial h

hearings, that attorney made a point of putting it in the

record that because of Petitioner's refusal to communicate with

him, he was not doing the things that he would normally do to

prepare for trial, but he failed to withdraw from Petitioner's

case even when the trial court said that his withdrawal would

be permitted. Ultimately, Petitioner was forced into a trial

with this attorney, who failed to put on a single witness, and

failed to;present this crucial evidence of Petitioner's history

of being sexually abused as mitigating evidence during

punishment. The state habeas court made findings of fact and

conclusions of law, but these findings and conclusions don't

address the issues that Petitioner raised. The Texas Court of

Criminal Appeals (TCCA) denied relief without written order,

which requires this Court to 'look through' that denial to the

trial court's findings of fact and conclusions of law as the

basis for the denial. The questions presented are:

Did the state court err when it held that Petitioner's

Sixth Amendment right to the Effective assistance of

counsel was not violated where Petitioner was forced

into a trial with an attorney whom he did not trust,

had lost confidence in, and absolutely refused to

communicate with?

,y!.

QUESTIONS PRESENTED-Continued

II.

Does the state court's decision-that counsel was not

ineffective for failing to investigate, develop and

present evidence of prior sexual abuse at the hands of

his stepfather, and its effects on him, as mitigating

evidence at punishment-contradict this Court's clearly

established law, as well as the decisions of the state

courts?

RELATED CASES

* State v. Adkins 9 No. D-l-DC-13-904105, 427th District Court

of Travis County. Judgment entered April 18, 2014.

* Adkins v. State, No. 03-14-00285-CR, Third Court of Appeals.

Judgment entered February 2, 2017.

* Adkins v. State, No. PD-0268-17, Texas Court of Criminal

Appeals. Judgment entered June 2, 2017.

* Ex parte Adkins, No. WR-94,088-01, Texas Court of Criminal

Appeals. Judgment entered December 21, 2022.

iii

TABLE OF CONTENTS

Page

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL PROVISIONS

STATEMENT

A. Procedural History

B. Factual Statement

1. The Facts

2. The Charges

3. The Attorney-Client Relationship

4. The Pre-Trial Proceedings

5. The Trial

6. The Verdict

7. The Punishment Phase

8. The Sentencing

9. The Habeas Corpus Proceedings

REASONS FOR GRANTING REVIEW

I. The State Courts Erred When They Held That Petitioner'sl7

Sixth AmendrpenfctRight To The Effective Assistance Of

Counsel Was Not Violated Where Petitioner Was Forced

To Go To Trial With An Attorney Whom He Did Not Trust,

Had Lost Confidence In, And Refused To Communicate

With.

II. The State Court's Decision-That Counsel Was Not

Ineffective For Failing To Investigate, Develop And

Pfcesent Evidence Of Prior Sexual Abuse At The Handd

Of His Stepfather, And Its Effects On Him, As

Mitigating Evidence At Punishment-Contradicts This

Court's Clearly Established Law, As Well As The

Decisions Of The State Courts.

CONCLUSION

PROOF OF SERVICE

APPENDIX

App. 1

Texas Court of Criminal Appeals order (Dec. 21, 2022)

App. 2

427th District Court's findings of fact and

conclusions of law

App. 3

Order refusing discretionary review (June 2, 2017)

App. 4

Third Court of Appeals of Texas opinion on direct

appeal

TABLE OF CONTENffS-Continued

Judgment of conviction

Notes from Rockdale Juvenile Justice Center

Pretrial hearing from February 19, 2014; 4 RR 4-8

Pretrial hearing from March 26, 2014; 6 RR 5-7

Pretrial hearing from April 4, 2014; 7 RR 4-9

Pretrial hearing from April 9, 2014; 8 RR 7-8

State habeas corpus application

State habeas corpus memorandum of law

Page

App. 5

App. 6

App. 7

App. 8

App. 9

App. 10

App. 11

App. 12

TABLE OF AUTHORITIES

Page

Ake v. Oklahoma, 470 S. Ct. 68 (1985)

Andrus v.Texas, 140 S. Ct. 1875 (2020)

Brown v. Craven, 424 F.2d 1166 (9th Cir. 1970)

16,18

California v. Brown, 479 U.S. 538 (1987)

16,22

Ex parte Gonzalez, 204 S.W.3d 391 (Tex.Crim.App.

16,23

2006)

6. Foster v. Chatman, 136 S. Ct. 1737 (2016)

15,19

7. Hemphill v. State, 2015 Tex. App. LEXIS 2888(Tex.

16,23

App.-Houston [14th Dist.] 2015)

8. Hinton v. Alabama, 571 U.S. 263 (2014)

9. Kaupp v. Texas, 538 U.S. 626 (2003)

10. King v. Johnson, 138 F.3d 951, 1998 WL 110056

(5th Cir. 1998)

11. Lair v. State, 265 S.W.3d 590 (Tex.App.-Houston

16,23

[1st Dist.] 2008, pet. dism'd)

12. Lopez v. State, 462 S.W.3d 180 (Tex.App.-Houston

16,23

[1st Dist.] 2015)

13. Loyd v. Whitley, 977 F.2d 149 (5th Cir. 1992)

14. Milburn v. State, 15 S.W.3d 267 (Tex.App.-Houston

16,23

[14th Dist.] 2000, pet. ref'd)

15. Morris v. Slappy, 461 U.S. 1 (9183)

16. Porter v. McCollum, 558 U.S. 30 (2009)

17. Rey v. States 897 S.W.2d 333 (Tex.Crim.App. 1995)

18. Shanklin v. State, 190 S.W.3d 154 (Tex.App.Houston

16,23

[1st Dist.] 2005, pet. dism'd)

19. Strickland v. Washington, 466 U.S. 668 (1984)

20. United States v. Cronic, 466 U.S. 648 (1984)

21. United States v. Soto Hernandez, 849 F.2d 1325

(lOfch Cir. 1998)

22. United States v. Williams, 594 F.2d 1258 (9th Cir.

16,18

1979)

23. Wearry v. Cain, 136 S. Ct. 1002 (2016)

24. Wiggins v. Smith, 539 U.S. 510 (2013)

16,21

25. Wilson v. Sellers, 138 S.Ct. 1188 (2018)

15,19

CONSTITUTIONAL PROVISIONS

U.S. CONST, amend IV

U.S. CONST, amend. VI

1,17,19,24

TABLE OF AUTHORITIES-Continued

U.S. CONST, amend. XIV

FEDERAL STATUTE

28 U.S.C. § 1257(a)

STATE STATUTE

TEX. CODE CRIM. PROC. art. 11.07

RULES

SUP. CT. R. 10(b)

SUP. CT. R. 10 (c)

vii

Page

2,17

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Samuel Adkins, respectfully petitions for a

writ of certiorari to review the judgment of the TCCA.

OPINIONS BELOW

The TCCA's denial of habeas corpus relief without written

order (App. 1) is unreported. The state district court's

findings of fact and conclusions of law (App. 2) is unreported.

The TCCA's refusal of discretionary review on direct appeal

(App. 3) is unreported. The Texas Court of Appeals' unpublished

opinion affirming the conviction on direct appeal (App. 4) is

available at 2017 Tex. App. LEXIS 875 (Tex. App.-Austin, Feb.

2, 2017). The judgment of conviction of the state district

court (App. 5) is unreported.

JURISDICTION

The TCCA denied relief on December 21, 2022. This Court has

jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS

The Sixth Amendment to the United States Constitution

provides,* in pertinent part, "In all criminal prosecutions, the

accused shall enjoy the right to...have the Assistance of

Counsel for his defense."

The Fourteenth Amendment to the United States Constitution

provides, in pertinent part, "No State shall...deprive any

person of...liberty • • •without due process of law..."

STATEMENT

Procedural History

Petitioner pled not guilty to aggravated sexual assault in

the 427th District Court of Travis County, Texas. The jury

convicted him, and the court assessed punishment at 65 years on

April 18, 2014.

The Texas Court of Appeals affirmed Petitioner's conviction

in an unpublished opinion issued on February 2, 2017. The TCCA

refused discretionary review on June 2, 2017. Adkins v. State,

No. 03-14-00285-CR, Tex. App. LEXIS 875 (Tex.App.-Austin, Feb.

2, 2017, pet. ref'd).

Petitioner filed a state habeas corpus application on April

20, 2022. The trial court, without conducting a live

evidentiary hearing, recommended that relief be denied. The

TCCA denied relief without written order on December 21, 2022.

Ex parte Adkins, No. WR-94,088-01 (Tex. Crim. App. Dec. 21,

2022) .

Factual Statement

1. The Facts

On the afternoon of July 29, 2012, Petitioner picked up

Kaylynn "Simpkins" and Rachel "Smith" (a pseudonym) from

Smith's house to go hang out at the greenbelt. During the

afternoon the three drank beer, smoked a little bit of

marijuana, and hung out. Petitioner showed some interest in

Smith. At approximately 8 to 9 p.m., the three of them left to

go to Petitioner's stepfather's house where they hung out for a

while longer.

At approximately 1:00 a.m. Simpkins needed to leave so

Petitioner drove the three of them to Smith's house where

Simpkins' car was parked. Simpkins got out. But Smith, who still

wanted to have a little more fun, returned to Petitioner's

stepfather's house with him.

At approximately 3:00 a.m., after Petitioner mistakenly

called her Carolina, Smith told him to take her home. The pair

left Petitioner's stepfather's house in a white pickup truck.

Shortly thereafter, Smith was brutally assaulted by Petitioner

in a sort of drive. She was able to flee and flagged down a car.

The driver of the car, Joseph "Kemp", stopped and picked Smith

up. She told him that she had been raped and asked him to call

the police.

2. The Charges

Petitioner was indicted by a Travis County Grand Jury for

the offenses of aggravated sexual assault and aggravated

kidnapping. Petitioner was re-indicted on November 13, 2013, in

Cause No. D-l-DC-13-904105. That indictment once again alleged

that Petitioner committed the offenses of aggravated sexual

assault and aggravated kidnapping, but also added a third count

for aggravated assault causing serious bodily injury. (C.R.

5-9)

3. The Attorney-Client Relationship

On April 15, 2013, William "Hines" was appointed to

represent Petitioner. Initially Petitioner was open and honest

with Hines about all things relating to the offenses for which

he was charged. Petitioner also disclosed to Hines that he had

been a victim of long-term sexual abuse at the hands of his

stepfather Stuart "Walsh", and informed Hines as to where

information could be found which would support these

accusations of the sexual abuse that he had endured for over

two years. (App. 6) Petitioner did suggest that if he went to

trial, he could deny everything, but Hines informed him that he

could not allow him to get on the stand and lie. Petitioner

accepted this and thought the issue was settled.

The attorney-client relationship between Petitioner and

Hines began to deteriorate when Hines gave him information that

was not truthful. And when Hines refused to petition the court

for a bond reduction when Petitioner had been in jail for an

extended period of time without going to trial.

4. The Pre-Trial Proceedings

On December 13

2013, Petitioner was arraigned. The State

made a formal offer of 50 years. (2 RR 10) Petitioner declined

that offer. (2 RR 11) Petitioner then spoke with Hines and

expressed that he would be willing to accept responsibility and

enter a plea of guilty in exchange for 15 years. Hines told

Petitioner, 'That isn't enough time for you. You'll still have

some of your youth left.' Petitioner immediately lost

confidence in Hines as counsel. On January 24, 2014, Petitioner

submitted a pro se motion to dismiss counsel, informing the

court that he felt this way. (C.R. 33-34)

Petitioner had also written two letters to the court

expressing his reasons for feeling like the attorney-client

relationship between he and Hines was irreparably damaged. At

the hearing on February 19, 2014, Petitioner mentioned these

two letters and requested permission from the court to read

them on the record. The court refused to allow Petitioner an

opportunity to put any portions of these letters into the

record. (4 RR 4-5; App. 7)

Petitioner reurged his motion to dismiss counsel. (4 RR 5-6;

App. 7) Ultimately, the court held that it found no legal

reason to remove Hines as counsel. (4 RR 8; App. 7)

Petitioner maintained his position and refused to

communicate with Hines or anyone from his office prior to trial,

which Hines put on the record repeatedly. 'Additionally, Judge,

I want to put on the record just so there's no misunderstanding

at a later point, that Mr. Adkins has indicated he no longer

wishes to have any meetings with me and that if I come to visit

him at Del Valle where he's housed, he will refuse that visit.

We've talked about that and I've talked about how that's

probably not the best idea and about how that will limit his

ability to assist me in the preparation of the trial. But I

have instructed him that I am not going to come out if he is

going to refuse and that he understands that, I've also told

him if he changes his mind, he can contact someone and let me

know and I'm happy to come visit him or he can write me a

letter.' (6 RR 5-6; App. 8)

'And, Judge, we should probably put on the record: Mr.

Adkins has previously informed the Court that he will refuse

any visits that I request. He refused my attempt to see and

counsel with him today. He has refused my offices' attempt to

see him at Del Valle. So we're at the point where, even though

I'm still the attorney on the case, he is refusing to

communicate in any way with my office. So--' (7 RR 7-8; App. 9)

'The final matter, Judge, and I've placed this on the

record previously but Mr. Adkins has indicated he is not going

to communicate with me, has refused my visits. I have had three

attempts to visit Mr. Adkins in holding at Del Valle jail and

he has refused all of those visits. He did agree to speak with

me today in holding but he has maintained that that was for the

limited purpose of today's hearing and that if I come out to

Del Valle, he will refuse the visit again.

So with that understanding, I'm not going to go to Del Valle

to waste his time. And I just wanted to put that on the record

as to why I'm not going to be doing what I would normally do

and make several visits as we're this close to trial.

(8 RR 7;

App. 10)

Remarkably, the court instructed Hines that he would be

allowed to withdraw from Petitioner's case if he wanted to, and

it was Hines who would not remove himself from representation.

(7 RR 5; App. 9)

5. The Trial

On April 14, 2014, Petitioner's trial began as scheduled.

During its case in chief, the State called ten witnesses. David

"Boyd", a corporal with the Austin Police Department ("APD"),

(9 RR 143); Ryan "Lillie", also a corporal with the APD, (9 RR

157); Kemp, who stopped for Smith when she flagged him down, (9

RR 166); Simpkins, a frierid of both Petitioner's and Smith's,

(10 RR 9); Smith, the victim in the case, (10 RR 32); Scott

"Stanfield", a detective with the APD Sex Crimes Unit, (10 RR

82-83); John Mark "Prada", a crime scene specialist with the

APD, (10 RR 104); Jenny "Black", a sexual assault nurse

examiner, (10 RR 113); Diana "Morales", the DNA analyst at the

APD Crim Laboratory, (11 RR 6); and Marshall "Vogt", who was

the senior forensic analyst for the District Attorney's Office,

(11 RR 36).

Smith, the victim, testified that she first saw Petitioner

in middle school. (10 RR 32) On July 29, 2012, she went with

Simpkins to hang out. They went swimming. (10 RR 33) They

shared two six-packs equally, and a stranger offered them

marijuana. (10 RR 35) It was getting dark when they left, so

she guessed it was about 8 or 9 o'clock. (10 RR 36) They hung

out for three or four hours before Simpkins wanted to leave. J

(10 RR 37) During that period nothing made her uncomfortable.

(10 RR 38) After dropping Simpkins off, they went back to

Petitioner's house and drank some more. (10 RR 40) At some

point Petitioner began touching Smith. He called her 'Carolina

and it weirded her out. (10 RR 41) Smith started to feel

uncomfortable. Id. Petitioner was saying things that were

sexually inappropriate. Smith felt like he was talking towards

someone else, but speaking at her. It was strange but not

aggressive. She told him to take her home. (10 RR 42)

While Petitioner was driving Smith was texting friends that

she felt uncomfortable. (10 RR 44) The ride was silent. Id. At

some point, Petitioner forcefully tried to take her phone from

her. He knocked it out of her hand

and it fell by the door

panel. (10 RR 45) As Smith was trying to reach for it,

Petitioner began punching her in the arm and on the side of her

face. Id. This lasted about a minute, then Petitioner pulled

into a half driveway. (10 RR 46; SX: 9-13) Petitioner began

choking her in a head lock. Smith felt like she was going to

pass out. (10 RR 48) He pulled her out of the truck. He said he

wanted to kill her. (10 RR 49) 'He said he was going to fuck me

and that he didn't want to go to jail so he was going to kill

me so he wouldn't go back.' (10 RR 49) Petitioner choked her,

and was punching her really hard on the right side of her face.

(10 RR 50) He said he would take her in the field where no one

would find her. Id. Smith said she fought back. (10 RR 51)

According to her, Petitioner made her take her shorts off, and

that's when he put his fingers into her vagina. He was doing

that for a couple of minutes. (10 RR 53) Smith was trying to

talk to Petitioner and he started to stop. They were talking for

a minute and he was explaining to her about his past. Id.

After a while, they were briefly separated, and in that

second Smith decided to run off. (10 RR 54) Smith identified

SX: 14-32 as pictures of her injuries. (10 RR 55-62) At the

hospital they dwabbed Smith's vagina, hands and mouth for DNA.

(10 RR 63)

The only witness that Hines called for the defense was

Detective Stanfield. After reviewing the videotape of Smith's

interview he testified that Smith had previously said that the

contact with her vagina was ten to fifteen seconds. (11 RR 39)

She had said nothing about being left in the field. (11 .HR 39)

Petitioner did not testify, and Hines presented no other

witnesses. (11 RR 40)

The Defense rested.

6. The Verdict

The jury returned a guilty verdict for aggravated sexual

assault. (11 RR 62)

7. The Punishment Phase

During punishment, the State called four witnesses. The

first was Danielle "Duchnick", Petitioner's former therapist

for approximately six months. (12 RR 24) She testified about an

incident from August 5, 2009, where Petitioner contacted her at

4:00 a.m., and expressed that he was suicidal and needed to see

her. (12 RR 26) Duchnick agreed to meet him. According to her,

Petitioner appeared quite intoxicated, and she convinced him to

let her drive him home. (12 RR 27) Duchnick told Petitioner

that she wanted to let his family know that he had violated the

rules of his probation by being out and intoxicated. (12 RR 28)

He instantly became aggressive and violent. Id. He told her

that she wasn't leaving without being raped, and threw her down

twice. (12 RR 29) Petitioner put her in a choke hold. (12 RR

30) She could barely breathe, and he pulled her into his

bedroom. (12 RR 31) When he let go, she screamed for his mother

then ran out of the house. (12 RR 32) Petitioner also hit his

grandmother in the face and she fell down and cried for help.

(12 RR 33)

Duchnick denied that Petitioner had confided in her about

the abuse by Walsh. (12 RR 37)

The State's second punishment witness was Virginia "Closs",

a neighbor of Petitioner's from acro§s the street, who

testified that on the morning of October 25, 2008, Petitioner

broke into her house and came into her room. (12 RR 40) He

touched her, making his way up to her private parts. Id. It

seemed like he was trying to take his pants off, so she quickly

got up and ran upstairs to her dad. Petitioner was trying to

put his hands inside of her. Id. Closs

dad found him hiding in

the pantry and kicked him out. (12 RR 41)

The State's third punishment witness was Dawn "Weidman",

who worked for the Travis County Juvenile Probation Department.

(12 RR 63) She testified that she was assigned to supervise

Petitioner, He was adjudicated in November 2008. (12 RR 64) In

September 2009, Petitioner was removed from his mother's home,

and placed in the sex offender program at Rockdale Regional

Juvenile Justice Center ("RRJJC"), in a 6 to 9 month program.

He was successfully released in May 2010. (12 RR 66) Petitioner

went to the Texas Youth Commission from August 2010 to May

2011. (12 RR 67) Weidman ceased to have contact with Petitioner

or his family. (12 RR 68)

The State's final witness at punishment was Matthew

"Ferrara", a licensed psychologist, and sex offender treatment

provider. (13 RR 5) Ferrara's testimony was especially damning

for Petitioner. He opined that Petitioner had a number of

unique or extraordinary risk markers, and that he had

distinguished himself as very unusual. (13 RR 8) That he was

different from 90 percent of sex offenders in a bad way because

he was someone who would not respond to treatment. (13 RR 13)

He opined that it was exceptionally likely that Petitioner

would reoffend. (13 RR 21) According to Ferrara, Petitioner had

been losing contact with reality. (13 RR 22)

Hines did allude to Petitioner's history of being sexually

abused during cross-examination of Ferrara, although in

hypotheticals, at which time Ferrara did agree, hypothetically,

that over 60 percent of all children who are sexually abused

experience mental health problems. (13 RR 32) He also agreed

that the parent's reaction to the abuse is critical. (13 RR 33)

Lastly, Ferrara agreed that this horrific abuse by somebody

who's supposed to be your guardian could cause people to act

out. (13 RR 34)

On redirect, the State made sure to ppint out that Hines

had talked at length in his hypothetical about child abuse, but

they didn't know what Petitioner did or did not suffer from as

a child. (13 RR 42)

After Ferrara's testimony, Hines recalled Simpkins for a

voir dire examination. (13 RR 43) Reluctantly, Simpkins admitted

that less than a minute into her interview, she told the

detective that Petitioner had always been a little weird. (13

RR 43-44) After they got to Walsh's house she asked^what's your

deal. Simpkins agreed that Petitioner told her not only that he

went to jail, but that he was raped by Walsh for two years when

he was a teen. (13 RR 44) Simpkins stated that when he told her

he had been raped it made sense to her why he was the way he

was. (13 RR 45) The court ruled this evidence inadmissible as

hearsay. (13 RR 46)

In closing arguments the State argued that the punishment

needed to fit Petitioner. (13 RR 51) The State pointed out that

he's an unusual individual. (13 RR 52)

Hines told the jury that he has two daughters, and that if

Petitioner had done this to one of his girls, he would want fed

cut his balls off. (13 RR 55) He asked the jury to make sure

his number was not the right number for the community, but the

right number for him. (13 RR 57)

8. The Sentencing

The court sentenced Petitioner to 65 years in prison. (13

RR 61; C.R. 107)

9. The Habeas Corpus Proceedings

On April 20, 2022 ,Petitioner filed an application for a

writ of habeas corpus pursuant to TEX. CODE CRIM. PROC. art.

11.07 in the 427th District Court in Travis County, Texas

advancing three claims of ineffective assistance of counsel.

(App. 11)

Petitioner alleged that he was denied the effective

assistance of counsel where: 1) he was forced to go to trial

with an attorney whom he did not trust, had lost confidence in,

and absolutely refused to communicate with; 2) counsel failed

to investigate, develop and present evidence of prior sexual

abuse by his stepfather, and its effects on him, as mitigating

evidence at punishment; and 3) counsel failed to present

exculpatory facts after the inculpatory portions had been

admitted by the State. (App. 11)

Petitioner also submitted his pro se memorandum of law

setting out the specific facts and legal arguments in support

of his claims. (App. 12)

In response to the order from the habeas judge, the

Honorable Tamara Needles, Hines submitted an affidavit

explaining the reason behind his decision during his

representation of Petitioner.

On September 23, 2022, the State submitted its proposed

findings of fact and conclusions of law recommending that

relief be denied. (App. Z/) Petitioner timely objected to the

State's proposed findings of fact and conclusions of law.

Petitioner did not receive any notification of the habeas

court's ruling, but assumes that it adopted the State's ;

proposed findings of fact and conclusions of law

as the TCCA

denied the application without written order and without a

hearing on December 21, 2022. (App. 1)

REASONS FOR GRANTING REVIEW

The state habeas court erroneously held that Petitioner was

not deprived of his right to the effective assistance of

counsel even though there was a total breakdown in communication

between Petitioner and Hines which prevented Hines from

effectively representing Petitioner at trial. Because the TCCA

denied relief without written order, this Court should "look

through" that denial to the trial court's findings of fact and

conclusions of law as the basis for the denial. See Foster v.

Chatman. 136 S. Ct. 1737, 1746 n.3 (2016)("[l]t is perfectly

consistent with this Court's practices to review a lower court

decision-in this case, that^the Georgia habeas court-in order

to ascertain whether a federal question may be implicated in an

unreasoned summary order from a higher court."); cf. Wilson v.

Sellers. 138 S, Ct. 1188, 1192 (2018)("We hold that the federal

court should 'look through' the unexplained decision to the last

related state-court decision that does provide a relevant

rationale. It should then presume that the unexplained decision

adopted the same reasoning."); King v. Johnson, 138 F.3d 951,

1998 WL 110056 (5th Cir. 1998)(unpublished)(reviewing the state

habeas trial court's legal conclusion under the "look through"

presumption when the TCCA denied habeas relief without written

order).

The state courts misapplied this Court's ineffective

assistance of counsel jurispudence in two ways, and therefore,

Petitioner's case deserves review from this Court for two

reasons. First, the state court erroneously concluded that

Petitioner was not deprived of his constitutional right to the

effective assistance of counsel where there was a total

breakdown in communication between Petitioner and Hines.

However, in the same circumstances, the Ninth Circuit has held

more than once that such a breakdown in communication between

an attorney and his client deprives a criminal defendant of his

right to counsel. Brown v. Craven, 424 F.2d 1166, 1169 (9th

Cir. 1970); United States v. Williams, 594 F.2d 1258, 1260 (9th

Cir. 1979). Review of this case is warranted because the Ninth

Circuit has decided that these circumstances deprives a

criminal defendant of his right to counsel, and this important

law

question of federalAhas not been, but should be, settled by

this Court. SUP. CT. R. 10(c).

Secondly, the state court erroneously concluded that Hines

was not ineffective where he failed to investigate, develop and

present crucial evidence of Petitioner's history of being

sexually abused as mitigating evidence at punishment. Wiggins

v. Smith, 539 U.S. 510, 534 (2013); California v. Brown, 479

U.S. 538, 545 (1987); Ex parte Gonzalez, 204 S.W.3d 391, 399

(Tex.Crim.App. 2006); Hemphill v. State, 2015 Tex. App. LEXIS

2888 *15 (Tex.App.-Houston [14th Dist.] 2015); Lopez v. State,

462 S.W.3d 180, 189 (Tex.App.-Houston [1st Dist] 2015);

Shanklin v. State, 190 S.W.3d 154, 165-66 (Tex.App.-Houston

[1st Dist.] 2005, pet. dism'd); Lair v. State, 265 S.W.3d 590,

590, 595-96 (Tex.App.-Houston [1st Dist.] 2008, pet. ref'd);

Milburn v. State, 15 S.W.3d 267, 271 (Tex.App.-Houston [14th

Dist.] 2000, pet. ref'd). Review is warranted because the TCCA's

judgment directly conflicts with this Court's well established

precedent, as well as numerous decisions from the state courts

on the very same issue. SUP. CT. R. 10(b) and 10 (c).

The State Courts Erred When They Held That Petitioner's

Sixth Amendment Right To The Effective Assistance Of

Counsel Was Not Violated Where Petitioner Was Forced To

Go To Trial With An Attorney Whom He Did Not Trust, Had

Lost Confidence In, And Absolutely Refused To Communicate

With.

A criminal defendant has a Sixth Amendment guarantee to the

effective assistance of counsel at trial. U.S. CONST, amend.

VI. Made applicable to the states by the Fourteenth Amendment.

U.S. CONST, amend. XIV. The law governing the effective

assistance of counsel was established by this Court nearly 40

years ago in Strickland v. Washington, 466 U.S. 668 (1984).

In order to prevail on an ineffective assistance of counsel

claim, this Court's Strickland standard requires that a

defendant satisfy a two-prong analysis. The first prong

requires that a defendant establish by a preponderance of the

evidence that counsel's performance fell below prevailing

professional norms. Strickland, 466 U.S. at 687. Under the

second prong a defendant must prove that he was prejudiced by

counsel's deficient performance. Ld. at 694. (Ultimately, the

defendant must show "a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding

would have been different.").

The Tenth Circuit, however, has held that "a complete

breakdown in communication between an attorney and client may

give rise to a presumption of ineffectiveness." United States

v. Soto Hernandez, 849 F.2d 1325, 1328 (10th Cir. 1998)(holding

that whatever level of defendant's mistrust of counsel, it "did

not result in a lack of communication between counsel and

defendant as to the essentials of defendant's defense, nor did

it lead to the breakdown of the attorney/client relationship",

so that counsel's assistance was per se ineffective)(citing

United States v. Cronic, 466 U.S. 648, 658 (1984)).

Likewise, the Ninth Circuit has held more than once that it

deprives a defendant of the effective assistance of counsel

where he is forced into a trial with an attorney after there

has been a complete breakdown in the attorney-client

relationship. Brown, 424 F.2d at 1169 (held attorney was

understandably deprived of the power to present any adequate

defense on Brown's behalf, where Brown was forced into a trial

with a lawyer with whom he was dissatisfied, with whom he would

not cooperate, and with whom he would not, in any matter

whatsoever, communicate); Williams, 594 F.2d at 1260 ("[Tjhat

to compel one charged with a grievous crime to undergo a trial

with the assistance of an attorney with whom he has become

embroiled in irreconcilable conflict is to deprive him of the

effective assistance of any counsel whatsoever.").

The state habeas court erroneously concluded that

Petitioner's Sixth Amendment right was not violated because

there was no "meaningful relationship" between Petitioner and

Hines. (App. 2, pg. 11; Conclusion 6) The state habeas court's

conclusion fails to address the argument set forth by

Petitioner, which was that Petitioner was denied the effective

assistance of counsel "due to a total breakdown in communication

between Petitioner and Hines". Petitioner invites this Court

to speculate that if there were communication between Hines and

himself, at the very minimum, Hines could have prepared

Petitioner to testify at punishment to present his mitigating

evidence.

The state habeas court, by mischaracterizing Petitioner's

claim, used a standard that would transform Petitioner's

legitimate claim into a legal fiction. Morris v. Slappy, 461

U.S. 1, 13 (1983)(The Court of Appeals

conclusion that the

Sixth Amendment right to counsel "would be without substance if

it did not include the right to a meaningful attorney-client

relationship", is without basis in law).

Petitioner submitted the portions of the record where Hines

made a point of putting it in the record that Petitioner was

refusing all visits and would not speak with him. Notably, the

TCCA did not reject the trial court's erroneous conclusion that

Petitioner argued that he had a right to a "meaningful

relationship."; it simply denied relief without written order.

Thus

this Court should "look through" that denial to the trial

court's findings of fact and conclusions of law as the basis

for that denial. Foster

136 S. Ct. at 1746 n.3; Wilson, 138 S.

Ct. at 1192. By that measure, the denial of relief conflicts

with this Court's precedent.

This Court should apply the correct total breakdown in

communication standard and reverse the TCCA s judgment because a

denial of counsel violated Petitioner's right to due process of

law and a fair trial. At the very least, this Court should

grant certiorari, vacate the judgment, and remand to the TCCA

to reconsider the denial of counsel under the proper standard.

Cf. Andrus v. Texas, 140 S. Ct. 1875, 1886-87 (2020)(per

curiam)(vacating judgment and remanding to the TCCA to address

the prejudice prong of an ineffective assistance of trial

counsel claim that the TCCA failed to address thoroughly).

The State Court's Decision-That Counsel Was Notlneffective

For^Failing To Investigate, Develop And Present Evidence

Of Prior Sexual Abuse At The Hands Of His Stepfather, And

Its Effects On Him, As Mitigating Evidence At PunishmentContradicts This Court's Clearly Established Law, As Well

As The Decisions Of The State Courts.

The state habeas court correctly concluded that an

attorney's decision not to present particular witnesses at the

punishment stage may be a strategically sound decision if the

attorney bases it on a determination that the testimony of the

witnesses may be harmful, rather than helpful, to the defendant.

(App. 2;, pg. 12; Conclusion 12) However, the court erroneously

concluded that Petitioner was required to demonstrate that any

witnesses-called by his attorney in guilt/innocence or

punishment-would have allowed him to prevail at trial or

resulted in a shorter sentence. (App. 2, pg. 13; Conclusion 13)

Once again, the state habeas court mischaracterized

Petitioner's claims and concluded that Petitioner failed to

allege any evidence indicating he was insane at the time of the

offense. (App. 2j, pg. 13; Conclusion 15) The state habeas

court's conclusion on this matter does not comport with any

claim advanced by Petitioner. Petitioner argued, specifically,

that Hines was ineffective for failing to procure the services

of a forensic psychologist or psychiatrist who could have

related to the jury how Petitioner's being sexually abused by a

man could have affected his behavior at the times in question.

(App.\2;, pgs. 25-26) The state habeas court made no mention

whatsoever regarding Petitioner's need for an expert even

though during trial the judge himself voiced Petitioner's need

for an expert regarding this issue. (13 RR 46)

The state habeas court disregarded the TCCA's decision in

Rey v. State, 897 S.W.2d 333, 338 (Tex.Crim.App. 1995)(holding

the rule is that if an indigent defendant establishes a

substanstial need for an expert, without which the fundamental

fairness of the trial will be called into question, Ake • v.

Oklahoma, 470 U.S. 68 (1985)] requires the appointment of an

expert, regardless of the field of expertise).

The state habeas court also disregarded this Court's

decision in Wiggins v. Smith, 539 U.S. 510, 534 (2013)(holding

counsel'd decision to end investigation when they did was not

reasonable in light of the evidence counsel uncovered in the

social services records-evidence that would have led reasonably

competent counsel to investigate further). The records from

RRJJC should have led Hines to investigate further into the

sexual abuse as mitigating evidence at punishment defense.

Whether it was due to Hines' failure to investigate, or the

total breakdown in communication between Petitioner and Hines,

the fact remains that Hines failed to investigate, develop and

present this crucial mitigating evidence at the punishment

phase of Petitioner'^ trial. The state habeas court concluded

that Petitioner showed no evidence that, had Hines raised the

fact issues alleged by Petitioner regarding his abuse as a

victim of sexual abuse, the outcome would have been different.

(App. £,, pg. 14; Conclusion 18)

This Court has squarely rejected such a notion. California

v. Brown, 479 U.S. 538, 545 (l987)(Evidence about the

defendant's background and character is relevant because of the

belief, long held by this society, that defendants who commit

criminal acts that are attributable to... emotional and mental

problems, may be less culpable than defendants who have no such

excuses).

While the state habeas court completely failed to address

Petitioner's claim that Hines was ineffective for failing to

obtain an expert to relate to the jury the effects that long

term sexual abuse might have had on him, the Fifth Circuit held

that such conduct results in ineffective assistance of counsel.

Loyd v. Whitley, 977 F.2d 149, 158 (5th Cir. 1992)(counsel held

ineffective where defense counsel's decision not to pursue an

independent psychological analysis was neitherstrategic choice

made after investigation nor a strategic choice made in light

of limits on investigation).

The state habeas court concluded that Petitioner showed no

evidence that had Hines shown the sexual abuse evidence the

outcome would have been different. This decision is at odds

with numerous state court decisions which have consistently

held that defendants are harmed where juries are prevented from

the possibility of considering mitigating evidence. Gonzalez,

204 S.W.3d at 399 (concluding that applicant's mitigating

evidence in regards to sexual abuse he endured, taken as a

whole, might have influenced the jury's appraisal of his moral

culpability); Hemphill, 2015 Tex. App. LEXIS 2888 at 15 (this

mitigating evidence "clearly would have been admissible" and

"the trial court would have considered if and possibly been

influenced by it"); Lopez, 462 S.W.3d at 189 (when defense

counsel presents no mitigating factors...to balance against the

aggravating factors or contact potential witnesses there is

prejudice); Shanklin, 190 S.W.3d at 165-66 (Prejudice exists,

in that context, because there is not even a possibility of the

factfinder considering mitigating evidence); and Lair

265

S.W.3d at 595-96 (concluding prejudice is demonstrated where

defense counsel's failure to interview or call a single witness,

other than appellant, deprived him of the possibility of

bringing out a single mitigatingfactor).

The state habeas court unreasonably concluded that

Petitioner had not shown that the outcome would have been

different, when in fact a defendant demonstrates prejudice when

counsel's lack of preparation deprives him of the possibility

of bringing out a single mitigating factor. Milburn, 15 S.W.3d

at 271 ("even though it is pure speculation that character

witnesses in mitigation would in fact have favorably influenced

the trial coufct's assessment of punishment", a defendant

nonetheless demonstrates prejudice when a counsel's failure to

investigate and lack of preparation at the punishment phase of

trial deprives a defendant of the possibility of bringing out a

single mitigating factor).

The state court decision is so contrary to this Court's and

the other courts' precedent that it requires a summary reversal.

This court has not shied away from summarily deciding fact

intensive cases where, as here, lower courts have egregiously

misapplied settled law. Wearry v. Cain, 136 S. Ct. 1002, 1007

(2016)(per curiam)(summary reversal where state habeas court

erroneously denied relief on suppression of evidence claim);

see also Hinton v. Alabama, 571 U.S. 263, 276 (2014)(per

curiam)(summary reversal on Sixth Amendement ineffective

assistance of counsel claim); Porter v. McCollum, 558 U.S. 30,

44 (2009)(per curiam)(same); Kaupp v. Texas, 538 U.S. 626, 633

(2003)(per curiam)(summary reversal on Fourth Amendment claim).

The state court decision not only rewards Hines for his

substandard performance but may also encourage other attorneys

to force defendants into trials with them as counsel only to

leave them defenseless before the factfinders.

*-----

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

Samuel Adkins

Pro Se Petitioner

TDCJ #1927457

French M. Robertson Unit

12071 FM 3522

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.