Petition for Writ of Certiorari — Rodney Adam Hurdsman, Petitioner v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division

Supreme Court briefSep 13, 2023

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Supreme- Court, U.S.

FILED

SEP 1 3 2023

No.

OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 2023

RODNEY ADAM HURDSMAN,

Petitioner,

-versusBOBBY LUMPKIN, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Rodney A. Hurdsman #02170782

TDCJ-CID, Robertson Unit

12071 VFarm to Market Road. 3522

Abilene, Texas

79601

QUESTIONS PRESENTED

Whether the pretrial period between the time the Sixth

Amendment right to counsel attaches to the start of trial

is a critical stage of the proceedings, thus warranting a

presumption of prejudice to the accused, when they are

incarcerated and left without an attorney in the case for

almost three full years during that pretrial period after

being arrested pursuant to a warrant in the case.

II.

Whether a plea bargain offer negotiated with the State

is a critical stage of the proceedings, thus warranting a

presumption of prejudice to the accused, when an attorney

withdraws from a case without notice and leaves a plea

offer accepted by the defendant unresolved and leaves the

defendant without another attorney in the case for almost

three full years thereafter.

III.

Whether a defendant's failure to assert their Sixth

Amendment right to a speedy trial and the three and a half

year delay before the start of trial should rightfully be

attributed and weighed against them in the speedy trial

analysis when they are incarcerated and unrepresented by

an attorney during that time period.

ii.

PARTIES

The petitioner is Rodney A. Hurdsman, a Texas State prisoner

currently serving a 75-year prison sentence for theft of property

and is presently confined at the Robertson Unit in Abilene, Texas.

The respondent is Bobby Lumpkin, Director of the Texas Department

of Criminal Justice, Correctional Institutions Division.

RELATED CASES

•

Hurdsman v. Lumpkin, No. 22-10280, U.S. Court of Appeals for

the Fifth Circuit. Judgment entered June 15, 2023.

•

Hurdsman v. Lumpkin, No. 4:21-cv-427, U.S. District Court for

the Northern District of Texas. Judgment entered Feb. 18, 2022.

•

Ex parte Hurdsman, No. WR-89,899-06, Texas Court of Criminal

Appeals. Judgment entered Oct. 7, 2020.

Hurdsman v. State, No. PD-30-19, Texas Court of Criminal

Appeals. Judgment entered Mar. 20, 2019.

Hurdsman v. State, No. 02-17-319-CR, Second Court of Appeals Fort Worth. Judgment entered Nov. 8, 2018.

State v. Hurdsman, No. CR-17817, 271st District Court, Wise

County, Texas. Judgment entered Sept.. 1:4, 2017.

iii.

TABLE OF CONTENTS

QUESTIONS PRESENTED

PARTIES

iii

RELATED CASES

iii

TABLE OF CONTENTS

iv-v

INDEX OF APPENDICES

TABLE OF AUTHORITIES

vii-ix

DECISIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE.

3-12

REASONS FOR GRANTING THE WRIT

13-27

Conflict in State and Federal Courts on Whether Pursuant

to Authoritive U.S. Supreme Court Decisions the Pretrial

Period is a Critical Stage of the Criminal Proceedings

for Sixth Amendment Right to Counsel Purposes...................... 13-16

Conflict in the Federal Appeal Courts...................................

Federal Courts Have Issued COA Augmenting the Conflict... 13

Conflict in State Appeal and Supreme Courts........................

Authoritive Landmark U.S. Supreme Court Decisions

Establish that the Pretrial Period is a Critical

Stage of the Proceedings.................................................................

II.

Conflict in State Court Decisions Whether Complete Denial

of Counsel During Plea Negotiations Constitute a Per Se

Sixth Amendment Violation................................................................. 17-25

Conflict with State Court Decisions

iv.

Supreme Court of Kentucky Has Decided an Important

Question of Federal Law that Should be Settled by

the U.S. Supreme Court....................................................................

Plea Negotiations are a Critical Stage of the Criminal

Proceedings............................................................................................

Sixth Amendment Right to Counsel at Critical Stages...

Violation of the Sixth Amendment Right to Counsel at a

Critical Stage and Per Se Presumptive Prejudice Review... 20

Granting Retained Counsel's Motion to Withdraw Without

Notice and Defendant's Presence in Court Constitutes a

Per Se Violation of the Fifth, Sixth and Fourteenth

Amendments to the United State Constitution

Substantive and Procedural Due Process Right to

Notice and Opportunity to be Present at Counsel's

Motion to Withdraw Hearing................................................

Defendant's Presence at the Hearing Would Have

Contributed to His Opportunity to Defend Himself

Against the Charge.................................................................

Conflicting Federal and State Trial and Appeal

Court Decisions........................................................................

Retained Counsel's Motion to Withdraw Hearing Was

a Critical Stage......................................................................

Denied Counsel of Choice or to Have Counsel Appointed.. 25

III. An Accused's Failure to Assert Their Right to a Speedy

Trial and the Delay Before Trial Should Not be Attributed

to the Defendant When They are Incarcerated and Without

26-27

Counsel

Supervisory Power of this Court is Required...............

Contrary to and an Unreasonable Application of U.S.

Supreme Court Decisions in Barker, Doggett and Brillon... 26

The U.S. District Court Relied on and Cited State

Court Cases on §2254 Federal Habeas Corpus Review

Outside the Limited Scope of Review Mandated by the

AEDPA and U.S. Supreme Court Decisions

CONCLUSION

INDEX TO APPENDICES

APPENDIX A: Decision of Higginbotham, Graves, and Ho

Circuit J

Judges, of the Fifth Circuit U.S. Court of Appeals,

in Hurdsman v. Lumpkin, Case No. 22-10280, judgment

entered on June 15, 2023. The unpublished decision

is cited at 2023 U.S. App. LEXIS 14922.

APPENDIX B: Opinion and Order of U.S. District Court Judge, Reed

O’Connor, Northern District of Texas, in Hurdsman v.

Lumpkin, Case No. 4:21-cv-427-0, judgment entered on

Febuary 18, 2022. The opinion and order is icited at

2022 U.S. Dist. LEXIS 29425.

APPENDIX C: Order of Fifth Circuit U.S. Court of Appeals, Circuit

Judge, James L. Dennis, granting C0A in Hurdsman v.

Lumpkin, Case No. 4:21-cv-427-0, entered on October

21, 2022.

APPENDIX D: Decision of Sudderth

Meier, and Gabriel, Justices,

of the Second Court of Appeals of Texas, in Hurdsman

v. State, Case No. 02-17-319-CR, judgment entered on

November 8 2018. The unpublished decision is cited

at 2018 Tex. App. LEXIS 9193.

APPENDIX E: Order of Fifth Circuit U.S. Court of Appeals, Circuit

Judge, James E. Graves, denying Petitioner's motion

for leave to file petition for rehearing en banc out

of time in Hurdsman v. Lumpkin, Case No. 22-10280,

entered on August 7, 2023.

vi.

TABLE OF AUTHORITIES

CASES

Argersinger v. Hamlin, 407 U.S. 25 (1972).....

Barker v. Wingo, 407 U.S. 51 (1972)......................

Bell v. Cone, 535 U.S. 685 (2002)..........................

Bradley v. Henry, 413 F.3d 961 (9th Cir. 2005)

Campbell v. Rice 408 F. 3d 1166 (9th Cir. 2005)

. . . 26,27

15,16,20

Coleman v. Alabama, 399 U.S. 1 (1970)...............

Deputy v. State, 500 A.2d 581 (Del. 1985)....

26,27

Doggett v. United States, 505 U.S. 647 (1992)

Ferrell v. State 401 S.E.2d 741 (Ga. 1991)

Fusi v. 0 ' Brien , 621 F.3d 1 (1st Cir. 2009)

Gideon v. Wainwright, 372 U.S. 335 (1963)............................

Graves v. Padula, 394 Fed. Appx • 978 (4th Cir. 2010)....

Gutierrez v. Alameida, 120 Fed. Appx. 81 (9th Cir. 2005)

Hale v. Gibson, 227 F.3d 1298 (10th Cir. 2000)..................

Hamilton v. Alabama, 368 U.S. 52 (1961).................................

Harrington v. Richter, 562 U.S. 86 (2011)............................

Hill v. Lockhart, 474 U.S. 52 (1985).......................................

Hughes v- State, 421 A.2d 69 (Md. Ct. App. 1980)...............

Iowa v. Tovar, 541 U.S. 77 (2004)..............................................

Jackson v. State, 555 S.E.2d 835 (Ga. Ct. App. 2001) ... .

21,26

15,18

Lee v. United States, 137 S. Ct. 1958 (2017)......................

22,24,25

Lewis v. United States, 146 U.S. 370 (1892)........................

Lindh v- Murphy, 521 U.S. 320 (1997).......................................

Marshall v. Rogers, 569 U.S. 58 (2013)..................................

McMann v- Richardson, 397 U.S. 759 (1970)............................

Kentucky v. Stincer, 482 U.S. 730 (1987)...............................

Lafler v. Cooper, 132 S. Ct. 1376 (2012)...............................

Mempa v. Rhay, 389 U.S. 128 (1967)............................................

Missouri v. Frye, 132 S. Ct. 1399 (2012)................. .............

Mitchell v- Mason, 325 F.3d 732 (6th Cir. 2003)...............

Padilla v- Kentucky, 130 S. Ct. 1473 (2010)........................

Pienson v. Ohio, 488 U.S. 75 (1988)............... ............................

vii •

13,16

People v. Cardenas, 411 P. 3d 956 (Colo. App. 2015)

People v. Dixon, 263 Mich. 2004)...................................

People v. White, 870 P.2d 424 (Colo. 1994).............

14,15,16,19

Powell v. Alabama, 287 U.S. 45 (1932)........................

Roe v. Flores-Ortega, 528 U.S. 470 (2000) . .

Snyder v. Massachusetts 291 U.S. 97 (1934)

State v. Dunn, 74 P.3d 231 (Ariz. 2003).......................... ,

22,25

State v. Lopez, 859 A.2d 898 (Conn. 2004)...................... .

Stone v. Commonwealth, 217 S.W.3d 233 (Ky. 2007)....,

Strickland v. Washington, 466 U.S. 688 (1984)............. .

........... 17,21

13,16,19,20

Tobin v. Commonwealth, 622 S.W.3d 663 (Ky. App. 2021)

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

20,21

United States v- Gonzales-Lopez, 548 U.S. 140 (2006)

United States v. Henry, 447 U.S. 263 (1980)..................

United States v. Jones, 381 F.3d 114 (2nd Cir. 2004)

United States v. Oles, 994 F-2d 1525 (10th Cir. 1993)

Urguhart v. State, 203 A.3d 719 (Del. 2019)....................

Van v. Jones, 475 F.3d 292 (6th Cir. 2007)......................

15,21

Vermont v. Brillon, 566 U.S. 81 (2009)............................

Weaver v. Massachusetts, 137 S.Ct. 1899 (2017)...........

26,27

United States v.Wade, 388 U.S. 218 (1967).....................

White v. Maryland, 373 U.S. 59 (1963)...............................

Williams v. Taylor, 529 U.S. 362 (2000)............................

Wright v. Van Patton, 552 U.S. 120 (2008) . ......................

STATUTES

28 U.S.C.

§1254.(1). . .

§2254...........

§2254(d)...

§2254(d)(1)

2,12,26

28 U.S.C. §2254(d)(2)

CODES

Tex? Code Crim. Proc. Ar.t. 1.051(c-l).

Tex • Code Crim. Proc. Ar t. 11.07.........

Tex. Code Crim. Proc. Art. 11.07 §3(d)

viii •

RULES

Tex. R. Evid. 901(a),(b)(5)

CONSTITUTIONAL PROVISIONS

U.S. Const, amend. V..

U.S. Const, amend. VI.

U.S. Const, amend. XIV

.............. 2,22

11,2,13-22,25

.. 2,15,21,22

FEDERAL PUBLIC LAW

The Antiterrorism and Effective Death Penalty Act of 1996 ^AEDPA).

2,27

Pub. L. 104-132, 110 Stat. 1214

ix.

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 judgments below.

DECISIONS BELOW

The decision of the Fifth Circuit U.S. Court of Appeals is

not reported. It is cited however at 2023 U.S. App. LEXIS 14922,

and a copy is attached as Appendix A to this petition. The order

of the U.S. District Court for the Northern District of Texas is

cited at 2022 U.S. Dist. LEXIS 29425

and a copy is attached as

Appendix B to this petition. The order of Fifth Circuit U.S. Court

of Appeals, Circuit Judge, James L. Dennis, granting a COA is

attached as Appendix C to this petition. And the decision of the

Second Court of Appeals of Texas was not reported. It is cited at

2018 Tex. App. LEXIS 9193, and a copy is attached as Appendix D

to this petition.

JURISDICTION

The judgment of the Fifth Circuit U.S. Court of Appeals was

entered on June 15, 2023. Orders denying petition for rehearing en

banc and panel rehearing were entered on August 7, 2023 and August

22, 2023, as the Fifth Circuit does not give inmate petitioners

the benefit of the prisoner mailbox rule on petitions for rehearing.

Jurisdiction of this Court is conferred by 28 U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case invloves the Fifth Amendment to the United States

Constitution, which provides:

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a

grand jury, except in cases arising in the land or naval

forces, or in the militia, when in actual service in time of

war or public danger, nor shall any person be subject for

the same offense to be twice put in jeopardy of life or limb;

nor shall be compelled in any criminal case to be a witnesses

against himself; nor be deprived of life, liberty, or property,

without due process of law; nor shall private property be taken

for public use, without just compensation.

This case involves the Sixth Amendment to the United States

Constitution, which provides:

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shall have been

committed, which district shall have been previously

ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtaining

witnesses in his favor, and to have the Assistance of Counsel

for his defence.

This case involves the Fourteenth Amendment to the United

States Constitution, which provides:

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they reside.

No State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United States;

nor shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.

This case further involves Title 28 U.S.C. §2254 and the

Antiterrorism and Effective Death Penalty Act of 1996.

STATEMENT OF THE CASE

On Febuary 24, 2014 various tools and equipment were reported

stolen from a gas-compression station in Wise County, Texas. Among

the items reported missing were five (5) exhaust catalysts alleged

to range in value from $1,500 to more than $8,000 each. ROA.825-31.

The Petitioner, Rodney Hurdsman ("Hurdsman")

was first taken into

custody by Wise County authorities in connection with the stolen

property on Febuary 25, 2014. ROA.J856. On March 1, 2014 he posted

bond and was released, however, he was again taken into custody on

March 17, 2014 after additional charges were brought against him

by Wise County authorities related to the case. ROA.477.

On April 24, 2014 Hurdsman retained an attorney named Jim Shaw

to represent him and he was again released from custody after Mr.

Shaw posted his bond on that same date. ROA.477-79. On June 6, 2014

Hurdsman was indicted in Wise County for theft of property $20,000$100,000, a third degree felony with a punishment range of 2-10

years in prison. ROA.327. Around that time Mr. Shaw began to have

mental and physical health problems and was then diagnost with a

form of brain cancer which he unfortunately later succumbed to in

2016. See Hurdsman v. State, slip op. at 3-4 (referencing, Mitch

Mitchell, Fort Worth lawyer Jim Shaw fought cancer as hard as he

fought for his clients, Fort Worth Star-Telegram (Dec. 28, 2016,

9:48 PM), https://wwv7.star-telegram.com/news/local/obituaries/

articlel23467179. html (last visited Oct. 30, 2018)). ROA.135-36.

"ROA" refers to the Federal Record on Appeal followed by citation

to page number. "RE" refers to numbered Record Excerpts submitted

by Hurdsman on Federal Appeal.

Consequently, this resulted in a young associate of Mr.; Shaw's

named Ray Napolitan appearing on Mr. Shaw's behalf representing

Hurdsman at early court appearances in the case. On August 13, 2014

after one of these court appearances Mr. Napolitan conferred with

Greg Lowery, the Wise County D.A., and communicated to Hurdsman in

the presence of his wife that he had negotiated a favorable pleabargain with the State: an eighteen (18) month term of imprisonment

in exchange for Hurdsman's quilty plea to state jail felony theft.

ROA.3857-71;RE.12-14. At that time

Hurdsman communicated that he

wished to accept the State's offer to Mr. Napolitan. Mr. Napolitan

then communicated to Hurdsman that he would immediately inform Mr.

Lowery of Hurdsman's decision to accept the State's offer and that

he would have the case set for a plea hearing before the judge. Id.

However

Mr. Napolitan failed to communicate Hurdsman's acceptance

of the plea agreement back to the State (seemingly, becausevGreg

Lowery has never answered or been made to answer the question of

whether he even made the eighteen (18) month offer; let alone the

question of whether or not Mr. ,Napolitan communicated Hurdsman's

acceptance of the offer back to him and the State) . Nevertheless,

it is clear that Mr. Napolitan failed to have the case set for a

plea hearing in a reasonable amount of time to memorialize the plea

agreement Hurdsman had entered into with the State. Id.

In any event, on September 29, 2014 Hurdsman was arrested in

Shreveport, Louisiana, and booked into the Caddo Parish Detention

Center pursuant to an arrest warrant lodged against him by Wise

County authorities again concerning this case. See Caddo Parish

Sheriff's Office - Arrest Report (and Booking Sheet). ROA.3864.

See also, Valentina Hurdsman Affidavit, attached Exhibit-B. RE.12.

At that time

Hurdsman did not have any other warrants or holds

lodged against him with Caddo Parish authorities from any other

state or federal jurisdiction; nor did he have any other charges

pending against him in the State of Louisiana. Therefore, Hurdsman

waived extradition to Wise County, Texas, however

for whatever

reason Wise County authorities sat back and did nothing to return

Hurdsman to their jurisdiction. See Document 00516307624, Page 13

Fn . 3 , and 36 IT 1.

Nevertheless, on October 7, 2014 Mr. Napolitan filed a motion

with the Court and was permitted to withdraw Mr. Shaw from further

representing Hurdsman in the case without notice to Hurdsman or his

presence in court. ROA.330-36;RE.17. Mr. Napolitan attached to the

motion an Internet newspaper article that entirely misrepresented

the facts surrounding Hurdsman's arrest in the State of Louisiana.

Id. Additionally, Mr. Napolitan failed to take any steps to protect

Hurdsman's interest in the eighteen (18) month plea agreement he

had negotiated with the State, and which he had communicated and

Hurdsman accepted. Mr. Napolitan further failed to even secure or

request substitute counsel for Hurdsman when he withdrew Mr. Shaw

to protect that interest and his interest in a speedy trial and

disposition of the case. Id. Mr. Napolitan essentially abandoned

Hurdsman just as plea negotiations were underway and pretrial

investigations should have commenced. Hurdsman remained in jail and

unrepresented by counsel in the case without him even knowing for

almost three (3) years thereafter.

Notably, the trial Court had a duty to appoint Hurdsman counsel

after he allowed Mr. Napolitan to withdraw Mr. Shaw from the case

because Hurdsman had been arrested in another jurisdiction pursuant

to a Wise County arrest warrant and had previously been determined

to be indigent by the Court and requested appointed counsel in the

case. However, the Court neglected its responsibility to appoint

substitute counsel for Hurdsman at that time. See, Tex. Code Crim.

Proc. art. 1.051(c-l); and State Trial Court Record, Docket Sheet,

July 3, 2014 docket entry.

After Wise County authorities failed to show up and transport

Hurdsman back to their jurisdiction authorities from the State of

Arkansas took custody of him on October 21, 2014 and transported

him from Caddo Parish to the Saline County jail in Benton, Arkansas.

Hurdsman remained in the Saline County jail for more than six (6)

months based on alleged charges that post dated the Wise County

charges, and were ultimately dismissed on April 22, 2015.

Hurdsman again waived extradition to Wise County, however, for

whatever reason Wise County authorities decided not to extradite

him back to their jurisdiction a second time. Instead, authorities

from Williamson County, Texas, took custody of Hurdsman on April 27,

2015 and transported him to the Williamson County jail located in

Georgetown, Texas, based on charges that again post dated the Wise

County charges and that Hurdsman had not even been indicted on. On

July 6, 2017 the Williamson County charges were also dismissed after

Hurdsman spent over twenty six (26) months in that jail, which was

no more than a three (3) hour drive from Wise County

Texas.

Indeed, forty (40) months after his initial arrest in the case,

and thirty four (34) months after his arrest pursuant to a Wise

County warrant in the State of Louisiana, Hurdsman was finally taken

to Wise County by Williamson County authorities on July 7, 2017.

It was not until then that Hurdsman first learned that Mr

Shaw

was no longer his attorney and that he had been entirely without

counsel in the case since October 7, 2014. On July 12, 2017, the

Court finally decided to appoint Hurdsman substitute counsel and

an attorney named David Singleton begin representing Hurdsman in

the case. ROA.337;RE.17.

After conducting his initial consultation with Hurdsman at the

Wise County jail Mr. Singleton met with Wise County D.A., Gregory

Lowery, specifically concerning the veracity of information he had

obtained from Hurdsman about the State's eighteen (18) month plea

bargain offer in 2014. During that meeting Mr-.1 Lowery confirmed to

Mr. Singleton that he had in fact made the offer to Hurdsman back

in 2014 while negotiating (a disposition in Hurdsman's case with

Mr. Napolitan. However, Mr. Lowery informed Mr. Singleton that the

State had withdrawn the eighteen (18) month plea bargain offer at

some unspecified point in time, and that the State's offer was now

forty (40) years. Mr. Lowery further informed Mr. Singleton that

it still may turn out that Hurdsman would be allowed to accept the

State's previous eighteen (18) offer depending on how things come

together and the case progresses.

Mr . Singleton placed this information on the record during a

September 11, 2017 5 . pre-trial hearing, and represented before the

Court that there had been an eighteen (18) month plea offer prior

in the case and that Hurdsman had intended to accept it,; however

his prior attorney in the case didn't follow through and do it.

ROA.1535. The Second Court of Appeals opinion in Hurdsman's case

specifically cites to Mr. Singleton's representation to the Court

concerning the eighteen (18) month plea offer in the record, and

provides further proof that the offer was made and had.existed.

See, Hurdsman v. State, slip op. at 11-12; ROA.143-44.

After Hurdsman declined the State's new forty (40) year offer,

on August 15, 2017 the State filed notice of its intent to seek

enhancement of the sentencing range from 2-10 years in prison to

25-life based on proof of prior felony convictions. ROA.249-51. On

September 12, 2017 Hurdsman was taken to trial

and on September

14, 2017 a jury found him guilty of third degree felony theft and

sentenced him to seventy five (75) years in prison after finding

the prior enhancement charges true. ROA.490-509;RE.4-6.

Hurdsman subsequently filed a direct appeal with the Second

Court of Appeals in which his counsel raised a single ground for

review: that his right to a speedy trial had been violated. That

Court denied his claim on that ground and affirmed his conviction

on November 18, 2018. However, the Court's opinion reflects that

the Court's decision was based on extremely flawed fact findings

and applications of law. Entirely contrary to the Court's own

recitation of facts Hurdsman was not in federal prison or even in

federal custody at any time during the forty three (43) month delay

before his trial. See, Hurdsman v. State, slip op. at 3 and 12;

ROA .135,144. The Court further erred when it attributed the delay

before trial to Hurdsman and faulted him for failing to raise his

speedy trial request until he was brought back to Wise County in

2017. Id. at 10-12; ROA.142-44. Hurdsman was unrepresented by an

attorney and not even aware of it during the relevant time period.

Nevertheless

on March 20, 2019 the Texas Court of Criminal

Appeals (TCCA) refused Hurdsman's petition for discretionary

review on the speedy trial violation ground. ROA.318.

On January 13, 2020 Hurdsman filed an application for writ of

habeas corpus with the TCCA pursuant to article 11.07 of the Texas

Code of Criminal Procedure. Hurdsman's state habeas writ presented

allegations of ineffective assistance of counsel, the denial of

counsel altogether, as well as a violation of his right to a speedy

trial, and he promptly requested an evidentiary hearing to develop

the record and resolve the fact issues raised by those allegations.

R0A.3689-3812. Central to the ineffective assistance of counsel and

denial of counsel altogether allegations was that Mr. Napolitan:

failed to communicate back to the State Hurdsman's acceptance of

the eighteen (18) month plea offer; he withdrew Mr. Shaw from the

case underl false pretenses and without notice to Hurdsman; and he

failed to secure substitute counsel for Hurdsman and protect his

interest in the eighteen (18) month plea offer he had accepted.

Hurdsman was subsequently left completely without counsel in the

case for thirty three (33) months after Mr. Napolitan withdrew

Mr. Shaw from representing Hurdsman in the case. Id.

After Hurdsman's state habeas writ was filed with the trial

court the Wise County D.A. never explicitly admitted or denied

that they had extended the eighteen (18) month offer. Instead,

they opted not to file an answer or respond to Hurdsman's state

writ. Nor did the trial Court take any action regarding Hurdsman's

state writ which resulted in it being overruled by operation of

law and it was then forwarded to the TCCA. In an unpublished order

issued on April 1, 2020 the TCCA remanded the case back to the trial

court with specific instructions to further develop the record on

certain material fact issues because Hurdsman had alleged facts in

his habeas application that, if true

could entitle him to relief on

his claims .and heeded to be resolved. ROA.3967-69. The remand order

required the trial court to order Mr. Napolitan to answer Hurdsman's

ineffective assistance of counsel claim and the allegation he failed

to communicate Hurdsman's acceptance of the State's eighteen (18)

month plea offer back to the State in 2014. The order also required

the trial court to make specific findings of fact and conclusions of

law as to whether: The State made Hurdsman an eighteen (18) month

plea bargain offer in the case; Napolitan communicated that Hurdsman

had accepted an eighteen (18) month plea offer back to the State;

and the trial court would have accepted the eighteen (18) month plea

agreement at that time. The trial court was further required to make

specific findings of fact and conclusions of law as to whether: From

October 7, 2014 to July 12, 2017 Hurdsman was denied his right to

counsel in the case. ROA.3967-69.

The trial court judge was not the same judge that presided over

Hurdsman's case in 2014, or in 2017, and had no first hand knowledge

of the previous proceedings or the individuals involved. Nevertheless

the trial court decided not to conduct a live hearing when the case

was remanded for further factual development. Instead, the trial

court solicited an affidavit from Mr. Napolitan through an ex parte

communication concerning the TCCA's remand order. As a result, Mr.

Napolitan provided the court with an affidavit; however, he denied

that: He had ever negotiated and secured an eighteen (18) month plea

agreement with the State in 2014; the State had never made any plea

10.

offer of eighteen (18) months or any other such offer to Hurdsman;

and that he ever comminicated an eighteen (18) month or any other

offer to Hurdsman from the State.in the case in 2014. Mr. Napolitan

further made several other untruthful assertions in his affidavit

which were inequitably interjected into the record in Hurdsman's

case and incorrectly cited as fact. ROA.3368-71;RE.15.

After Hurdsman was confronted with the prevaricative affidavit

Mr. Napolitan's submitted to the trial court he provided the trial

court with direct evidence he had recently obtained from attorneys

from the U.S. Attorneys Office in Arkansas, via his federal defense

attorney, that Mr. Napolitan had flat-out lied about the existance

and his knowledge of an eighteen (18) month plea bargain the State

offered Hurdsman. On July 16, 2020, via the Wise County court clerk,

Hurdsman filed a computer thumb drive containing an audio recording

of a June 3

2015 jail call he had with Mr . Napolitan while he was

confined at the Williamson County jail located in Georgetown, Texas.

During that phone conversation Mr. Napolitan can be heard affirming

details of the eighteen (18) month plea offer from the State out of

his own mouth. ROA.3432-40.

Along with the thumb drive Hurdsman filed a written memorandum

describing the substance of the audio evidence and an affidavit in

which he swore to its authenticity. ROA.3303-11;RE.16. Hurdsman's

affidavit was sufficient to authenticate the recording under the

Texas Rules of Evidence. See Tex. R. Evid. 901(a)-(b)(5) (West 2017).

A photocopy of the thumb drive is found in the record, however,

the actual thumb: drive itself and the evidence of jail call that

was on it is not. That critical evidence inexplicably was missing

11.

from the record and was not forwarded by the clerk to the TCCA or

the federal courts to be properly considered in the case as was

required by state law. See Texas Criminal Code Article 11.07§3(d).

Nevertheless, the trial court's findings of fact explicitly

relied on Mr. Napolitan's affidavit denying the existence of any

eighteen (18) month offer, without addressing the implications of

the audio evidence and Mr. Singleton's representations on the record

disproving Mr. Napolitan's assertions, to reject Hurdsman's claims.

The trial court disregarded the TCCA's order to determine if the

State had made the offer and Mr. Napolitan had communicated that

Hurdsman had accepted the offer. The trial court's findings of fact

recite Mr^ Napolitan's affidavit almost verbatim and exclude every

other individual involved from the fact finding process. ROA.336871;3372-75. The case was then sent back to the TCCA for disposition.

On October 7, 2020 the TCCA denied Hurdsman's application for post

conviction relief without written order on the findings of the trial

court and independent review of the record.

Hurdsman filed through counsel a federal writ of habeas corpus

pursuant to 28 U.S.C. §2254 asserting the same Constitutional claims

he had brought in state court.’ The federal court defered to State's

factual findings and conclusions of law and denied Hurdsman's case

on Febuary 18, 2022. Hurdsman was granted a COA on his ineffective

assistance of counsel, and denial of counsel altogether claims and

sought review in the Fifth Circuit IT.S. Court of Appeals. That court

affirmed the district court's judgment on June 15, 2023, and denied

Hurdsman's petition for rehearing on August 22, 2023.

12.

REASONS FOR GRANTING THE WRIT

Conflict in State and Federal Courts on Whether Pursuant to

Authoritive U.S. Supreme Court Decisions the Pretrial Period

is a Critical Stage of the Criminal Proceedings for Sixth

Amendment Right to Counsel Purposes.

Conflict in the Federal Appeal Courts.

The Fifth Circuit UJS. Court of Appeal's opinion in the case

sub judice, and others, conflict with the Sixth Circuit's opinion

in Mitchell v. Mason* 325 F.3d 732 (6 th Cir. 2003) , that the pretrial

period is a critical stage for Sixth Amendment right to counsel

purposes. In the case sub judice, and others, the Fifth Circuit has

held that the pretrial period is not a critical stage of the overall

trial proceedings, and denied petitioners relief even when they were

incarcerated without counsel for periods of up to three (3) years.

In Mitchell, however, the Sixth Circuit held that pursuant to U.S.

Supreme Court precedent, "the pretrial period constitutes a critical

stage because it encompasses counsel's constitutionally imposed duty

to investigate the case," and without meaningful "pretrial consult

ation with the defendant, trial counsel cannot fulfill his or her

duty to investigate." Mitchell, 325 F.3d'at 743; (citing Strickland

v. Washington, 466 U.S. 68:8, 691 (1984)).

Federal Courts Have Issued COA Augmenting the Conflict.

Federal jurists from the First, Fourth and Fifth Circuit.U.S.

Courts of Appeal have concluded that reasonable jurists could dis

agree with a determination that the pretrial period is not a critical

13.

stage of the overall criminal trial proceedings and/or; that jurist

could conclude that the issue of whether the pretrial period is a

critical stage of the overall ..trial proceedings was adequate to

deserve encouragement to proceed for further review. Ultimately, the

federal jurists concluded that the defendants in the cases had made

a substantial showing of a denial of a constitutional right: The

denial of the Sixth Amendment right to counsel at the critical pre

trial stage of the proceedings. See Fusi v. O'Brien, 621 F.3d 1 (1st

Cir. 2009); Graves v. Padula, 394 Fed. Appx. 978 (4th Cir. 2010);.and;

Hurdsman v. Lumpkin, 2023 U.S. App. LEXIS 14922 (5th Cir. 2023)).

Conflict in State Appeal and Supreme Courts.

The Fifth Circuit U.S. Court of Appeal's opinion in the case

sub judice, and others, further conflict(with the Court of Appeals

of Michigan's decision in People v. Dixon, 263 Mich. App. 393 (Mich.

2004)• and the Supreme Court of Delaware's decision in Deputy v.

State, 500 A.2d 581 (Del. 1985), [that the pretrial period is a crit

ical stage of the proceedings for Sixth Amendment right to counsel

purposes. In Dixon

the Court of Appeals of Michigan held: "The

pre-trial period constitutes a

critical stage' because it encomp

asses counsel's constitutionally imposed duty to investigate the

case." Dixon, 263 Mich. App. at 397. In Deputy, an folder case; the

Supreme Court of Delaware held: "The Supreme Court has stated that

the presence of counsel at critical pretrial stages is often as

important', if not more so, than the presence of counsel at trial."

Deputy, 500 A.2d at 591 n.13; (citing Powell v{. Alabama, 287 U.S. 45,

54 (1932); see also, Urguhart v. State, 203' A. 3d 719 (Del. 2019).

14.

Authoritive Landmark U.S. Supreme :Court Decisions Establish

the Pretrial Period is a Critical Stage of the Proceedings.

"The Sixth Amendment secures to a defendant who faces incarce

ration the right to counsel at all 'critical stages' of the criminal

process." Iowa v. Tovar, 541 U.S. 77, 87 (2004)(citations omitted);

see Mempa v. Rhay, 389 U.S. 128, 134 (1967). "This principle derives

from Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932),

which held that a trial court's failure to appoint counsel until the

trial began violated the Due Process Clause of the Fourteenth Amen-_

dment" because the defendants "thus were deprived of the opportunity

to consult with an attorney

and to have him investigate their case

and prepare a defense for trial." United States v. Henry, 447 U.S.

263, 290-91(1980)(parallel citations omitted).

The U.S. Supreme Court has not provided a comprehensive and

final one-line definition of a "critical stage." Instead, the U.S.

Supreme Court has provided five (5) descriptions. A critical stage

in a case may occure, when: (1) "[a]vailable defenses may be irretr

ievably lost, if not then and there asserted," Hamilton v. Alabama,

368 U.S. 52, 53 (1961); (2) "where rights are preserved or lost,"

White v. Maryland, 373 U.S. 59, 60 (1963); (3) where counsel is "ne:c_£r:.

ssary to mount a meaningful defense," United States v.Wade, 388 U.S.

218, 225(1967); (4) where "potential substantial prejudice to defe

ndant's rights" is inherent in a particular proceeding and the pre

sence of counsel will "help avoid that prejudice," Coleman v. Alabama,

399 U.S. 1, 9 (1970)sor; which holds "significant consequences for the

accused," Bell v. Cone, 535 U.S. 685, 696 (2002)^ See Van v. Jones,

475 F . 3d 292, 3X2 (6th Cir. 2007 )(lis ting same).

15.

In Bell v. Cone, the U.S. Supreme Court identified "critical

stages" by looking to previous cases in which it had so character

ized various stages of criminal proceedings. By this reasoning, the

pretrial period is indeed a critical stage for Sixth Amendment right

to counsel puposes. Several U.S. Supreme Court cases demonstrate

that the period between appointment of counsel and the start of the

actual trial itself, is indeed, a "critical stage" for Sixth Amendm

ent purposes. In the landmark U.S. Supreme Court decision Powell v. •

Alabama, 287 U.S. 45 (1932), which established the constitutional right,

to counsel, the Court described the pretrial period as "perhaps the

most critical period of the proceedings... that is to say, from the

time of their arraignment until the beginning of their trial, when

consultation, thoro’ughegoing investigation and preparation were

vitally important." Powell, 287 U.S. at 69.

Therefore, the pretrail period constitutes a "critical stage"

because it encompasses counsel's constitutionally imposed duty to

investigate the case. In another landmark U.S. Supreme Court decision

Strickland v. Washington, 466 U.S. 668 (1984), the Court explicitly

found that trial counsel has a "duty to investigate" and that to be

able to discharge that duty, "counsel has a duty to make reasonable

investigations or to make a reasonable decision that makes particular

investigations unecessary." Strickland, 466 U.S. at691. Thus, without

meaningful "pEefrial.consultation with the defendant, trial counsel

cannot fulfill his or her duty to investigate." Mitchell v. Mason,

325 F. 3d 732 (6th Cir. 2003) (citing Strickland, 466 U.S. at 691). It

has been emphasized by the U.S. Supreme Court that the pretrial period

is a critical stage for.Sixth Amendment right to counsel purposes.

16.

II.

Conflict in State Court Decisions Whether Complete Denial of

Counsel During Plea Negotiations Constitute a Per Se Sixth

Amendment Violation.

Conflict With State Court^Decisions.

The Fifth Circuit U.S. Court of Appeal's opinion in the case

sub judice conflicts with the Supreme Court of Kentucky's opinion

in Stone v. Commonwealth, 217 S.W.3d 233 (Ky. 2007), that plea-negoti

ations" and "guilty plea hearings"

are "critical stages" of the

criminal proceedings and "we are bound by U.S. Supreme Court's very

clear dictates that the complete denial of counsel at a critical

stage is reversible error perse, not subject to harmless error

review." Stone, 217 S.W.3d at 240;(citations omitted); accord Tobin

v. Commonwealth, 622 S.W.3d 663, 668 (K^.. A)pp. 2021).

The Supreme Court of Kentucky has Decided an Important

Question of Federal Law that Should be Settled by the U.S.

Supreme Court.

This Honorable Court should grant the writ to resolve this

disputed important question of federal law: Whether the complete

denial of counsel after plea negotiations resulted in an offer from

the State being accepted .by. the defendant, but then left unresolved

when counsel withdraws without notice, -and later^rescinded ;by the :

State at some unknown time, is a per se structural error.

Plea Negotiations are a Critical Stage of the Proceedings.

"Defendants have a Sixth Amendment right to counsel, a right

that extends to the plea bargaining process. During plea negotiations defendants are

entitled to the effective assistance of comp17.

etent counsel. III Lafler v. Cooper, 132 S. Ct. 1376, 1384, 182 L. Ed.

2d 398 (2012)(citations omitted)(quoting McMann v. Richardson, 397

U.S. 759 (1970) ) (citing Missouri v. Frye, 132 S. Ct. 1399, 182 L. Ed.

2d 379 (2012); Padilla-v. Kentucky

130 OS. Ct. 1473, 1486, 176 L. Ed.

2d 284 (2010); Hill v. Lockhart, 474 U.S. 52, 54 (1985).

In a series of decisions culminating in Padilla, Lafler and

Frye, the U.S. Supreme Court has made clear that 'plea bargains have

become so central to the administration of the criminal justice

system that defense counsel have responsibilities in the plea bar

gain process[]...that must be met to render the adequate assistance

of counsel that the Sixth Amendment requires in the criminal process

at critical stage." Frye, 132 S. Ct. at 1407. Plea negotiations fre

quently determine "who goes to jail and for how lone," often making

plea negotiations "the only stage when legal aid and advice would

help criminal defendants." Frye, 566 U.S. 143-44; see also Lafler,

566 U.S. at 169-70 (observing "the reality that criminal justice i:.

today is for the most part a system of pleas, not a system of trai=d

als."). According to U.S. Supreme Court decisions the acceptance of

a plea offer and the entry of a guilty plea is a critical stage,

creating an entitlement to counsel. Iowa v. Tovar, 541 U.S. 77, 81

(2004). In fact, acceptance of a plea bargain is a critical stage,

according to the U.S. Supreme Court, because assistance of counsel

is necessary "so that the accused may know precisely what he is

doing, so that he is aware of the prospect of going to jail or pri

son, and so that he is treated fairly by the prosecution." Argersinger v. Hamlin, 407 U.S. 25, 33 (1972). Complete denial of counsel

during critical plea negotiations is a per se structural error.

18.

The Sixth Amendment Right to Counsel at Critical Stages.

The Sixth Amendment provides that in "all criminal prosecutions,

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

sel for his defence." U.S. Const, amend. VI. This right means more

than a lawyer:at trial. See Powell v. Alabama, 287 U.S. 45, 60-66

(1932). It ensures that defendants facing incarceration will have

counsel at "all critical stages of the criminal process ." Marshall

v. Rodgers, 569 U.S. 58, 62 (2013)(citations omitted); see also, e. • g • >

Lee v. United States, 137 S. Ct. 1958, 1964, 198 L. Ed. 2d (2017).

The case sub judice, is not about the effectiveness of counsel,

which would require him to show prejudice. See Strickland, 466 U.S.

668 (1984). He argued

instead, that his attorney withdrew from the

case without notice, after plea negotiations had commenced and were

ongoing, and leaving a plea offer from the State unresolved that he

had accepted when offered. Granted he was arrested in another state,

however, he was arrested based on a warrant in this case

and was

out on bond, was unaware of the warrant and had not absconded. He

spent almost three (3) full years incarcerated and without counsel

in the case after his attorney withdrew and, at some unspecified

point the State's plea offer was rescinded. Wise County authorities

made no attempt to return him to their jurisdiction, and nobody had

informed him he was without counsel. During that time, the trial

court never appointed substitute counsel, although he had file an

application for court appointed counsel and indigency declaration

in 2014, shortly after being indicted. Thus

he was completely wit

hout counsel at a critical stage of the proceedingssuch that pre

judice is presumed, without any showing of prejudice or harm review.

19.

Violation of the Sixth Amendment Right to Counsel at a

Critical Stage and Per Se Presumptive Prejudice Review.

This type of claim finds its roots in United States v. Cronic,

466 U.S. 648 (1984). In Cronic, decided the same day as Strickland,

the U.S. Supreme Court synthesized its right-to-counsel jurisprud

ence to date and, in doing so, described the "circumstances that

are so likely to prejudice the accused that the cost of litigating

their effect in a particular case is unjustified." Cronic, 466 U.S.

at 658; see also, e.g., Bell v. Cone, 535 U.S. 685, 695-96 (2002)(describing Cronic’s "three situations"). In the case sub judice, the

petitioner invoked Cronic's first and "[m]ost obvious" circumstance"the complete denial of counsel." Cronic, 466 U.S. at 659. Such a

denial need not last the entire proceeding, but it must occur during

a critical stage. Id. Cronic explained that the Court has "uniformly

found constitutional error without any showing of prejudice when

counsel was either totally absent, or prevented from assisting the

accused during a critical stage." Id. at 659 n.25. That explanation

referred to cases in which counsel had not been appointed tb'repre

sent the accused at the time of a critical stage in the proceedings.

Nevertheless, Cronic and later decisions emphasized that the

denial must be"complete" to warrant the presumption of prejudice.

Cronic

466 U.S. at 659; Wright v. Van Patten, 552 U.S. 120, 125 (2008);

Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000); see also Penson v. Ohio,

488 U.S. 75, 88 (1988). The denial of counsel at a critical stage is

not subject to harmless error analysis once a lawyer-less stage has

been deemed as critical. It is well established, that a complete

absence of counsel at a critical stage of a criminal proceeding is

20.

a per se Sixth Amendment violation warranting automatic reversal of

a conviction, a sentence, or both, as applicable, without analysis

for prejudice or harmless error. Van v. Jones, 475 F • 3d 292, 311-12

(6th Cir. 2007) (citing Cronic, 466 U.S. 649, 659); see also Weaver v.

Massachusetts, 137 S. Ct. 1899, 1907-08 (2017) (citing Gideon v. Wainwright, 372 U.S. 355, 343-45 (1963), holding that the Sixth Amendment

right to counsel is so fundamental and essential to a fair trial

that the Due Process Clause of the Fourteenth Amendment requires

states to appoint counsel for indigent defendants)).

As Justice

Cunningham of the Supreme Court of Kentucky so succinctly put it,

''for better or worse, we are bound by the U.S. Supreme Court's very

clear dictates that the complete denial of counsel at a critical

stage is reversible error per se, not subject, to harmless error

review." Stone v. Commonwealth, 217 S.W. 233, 240 (2007).

Indeed, in this day and age it is rare for any criminal pros

ecution not to involve some sort of plea negotiations along the

way. Arguably, when this happens, and the defendant- through inter

mediary counsel -has been offered and accepted a plea-bargain from

the:.State, it can unquestionably be the most critical stage of the

criminal proceedings.,This holds true in the state of Texas because

a defendant so ley relies on effective assistance of counsel during

the plea-bargaining process. Plea-bargain offers do not have to be

consigned in writing, and cannot be strickly enforced until after

the judge has accepted the terms in open court. This has left many

to believe comprehensive changes need to made because the current

system is inherently susceptible to being manipulated,..abused and

inequitably corrupt.

Ultimately, plea-offers are a critical stage.

21.

Granting Retained Counsel's Motion to Withdraw Without

Notice and Defendant's Presence in Court Constitutes a

Per Se Violation of the Fifth, Sixth and Fourteenth

Amendments to the United States Constitution.

Substantive and Procedural Due Process Right to Notice and

Opportunity to be Present at Motion to Withdraw hearing.

In Kentucky v. Stincer, the U.S. Supreme Court reiterated that

"[t]he Court has assumed that, even in situations where the defen

dant is not actually confronting witnesses or evidence against him,

he has a due process right 'to be present in his own person whenever

his presence has a relation, reasonably substantial, to the fulness

of his opportunity to defend against the charge.

t II

482 U.S. 730, 745

(1987) (citing Snyder v• Massachusetts , 291 U. S . 97 , 105-106 (.1934) ) .

Although the Court emphasized that this privilege is not guaranteed

"when [a defendant's] presence would be useless, or the benefit but

a shadow," Id., 106.-107, due process clearly requires that a defen

dant be allowed to be present "to the extent that a fair and just

hearing would be thwarted by his absence." Id. at 108. Therefore,

a defendant is guaranteed by the Due .Process Clause of. the Fifth

and Fourteenth Amendments the right to be present at any stage of

the criminal proceedings that is critical to its outcome if his

presence would contribute to the fairness of the procedure.

Defendant's Presence at the Hearing Would Have Contributed to

His Opportunity to Defend Himself Against the Charges.

In the case sub judice, the defendant's retained counsel wit-

thdrew without notice or the defendant's presence in court after a

an eighteen (18) month plea-bargain had been offered and accepted by

22.

the defendant.-Upon withdrawing from the case, counsel failed to

secure substitute counsel for the defendant, and further take steps

to protect the defendant's interests in the plea-bargain and trial

rights. The defendant was incarcerated and left without counsel in

the case for almost three (3) full years after being arrested purs

uant to warrant based on the charge. Counsel essentially abandoned

the defendant shortly after he had been indicted at a critical stage

of the proceedings when vital investigation, defense strategy, and

trial preparation should have been taking place. At a crucial time,

when essential trial right, witnesses and evidence should have been

secured. Nevertheless, counsel was allowed to withdraw by the court.

As a result; critical evidence and witnesses were lost; speedy

trial and other fundamental rights were lost; the eighteen (18) month

plea-bargain offer was lost; and the defendant's choice in counsel

was lost, as was his money to hire counsel. Ultimately, the defen

dant was'appointed counsel and rushed to trial in a matter of a few

weeks after finally being returned to Wise County, and he ended-up

being convicted and sentenced to seventy (75) years after his coun? •

sel's last minute motions for continuance and to have him mentally

evaluated were denied by the court. Indeed, the defendant's presence

at his retained counsel's motion to withdraw hearing would have

ensured him fundamental fairness in the proceedings because couns

el's motion was spurious and unethical. Further, the defendant would .have had ''a reasonably .substantial.. . opportunity to defend

against the charge" because he would have been afforded his right

to counsel of choice or counsel appointed by the court instead of

being inequitably denied counsel for almost three (3) full years.

23.

Conflicting Federal and State Trial and Appeal Court Decisions.

In a number of cases, courts have excluded defendants from dis

cussions with the judge concerning the defendant's own representation

in the case. See Gutierrez v. Alameida, 120 Fed. Appx • 81, 82 (9th Cir.

2005); United States v- Oles, 994 F.2d 1525 (10th Cir. 1993); Jackson

v. State, 555 S.E. 2d 835 (Ga. Ct. App. 2001); People v. White, 870 P. 2d

424 (Colo. 1994); Ferrell v. State, 401 S.E. 2d 741 (Ga. 1991). Even in

circumstances in which there is a clear conflict of interest because

the attorney alleged the defendant had attempted to burglarize his

office; or the District Attorney's Office had filed charges against

the attorney; or discussions included substantive matters concerning

charges against the defendant. See Hale v- Gibson, 227 F.3d 1298 (10th

Cir. 2000) ; Campbell v.Pice, 408 F.3d 166 (2005) ; United States v.

Jones, 381 F.3d 114 (2d Cir. 2004). In each of these cases, the trial

court deprived the defendant of his right to be present and to his

voice in a critical decision concerning counsel.

In several other cases, courts have recognized the importance

of the defendant's presence at this critical stage and reached a

more appropriate result. See Bradley v. Henry, 413 F.3d 961 (9th Cir.

2005); State v. Lopez, 859 A.2d 898 (Conn. 2004); Hughes v. State, 421

A.2d 69 (Md. Ct. App. 1980); State v. Dunn, 74 P. 3d 231 (Ariz. 2003);

People v. Cardenas, 411 P.3d 956 (Colo. App. 2015).

Counsel's Motion to Withdraw Hearing Was a Critical Stage.

In Kentucky v. Stincer, the U.S. Supreme Court stated that '.'the

fact that a stage in a proceeding is critical to the outcome of a

trial may be relevant to due process concerns. Even in that context,

24.

however, the question is not simply whether, 'but for

the outcome

of the proceeding, the defendant would have avoided conviction, but

whether the defendant's presence at the proceeding would have cont

ributed to the defendant's opportunity to defend himself against

the charge." Stincer, 482 U.S. at 745 n.17. The Court's reasoning in

Kentucky v. Stincer parallels its decision in Snyder v. Massachusetts

that the defendant has a right to be present where "his presence has

a relation, reasonably substantial, to the fullness of his opportu

nity to defend against .the charge." Snyder, 291 U.S. at 105-06.

The Court has long held, that personal interaction and confro

ntation are essential to the fairness of criminal proceedings. In

the 1892 case Lewis v. United States, the Court stated that a major

principle in the area of criminal law and procedure ia that after

the indictment, no proceeding shall take place in the defendant's

absence. 146 U.S. 370, 372 (1892). The Court claimed that a defenda

nt's right to be present during all stages of the prosecution is a

"high constitutional right." Id. at 375. The defendant had a right

to notice and to be present at the hearing on his retained counsel's

motion to withdraw in the case sub judice. It was a critical stage

of the proceedings in which he was denied a fair and just opportu

nity to defend against the charge because it left him without an

attorney in the case altogether for almost three (3) full years.

Denied Counsel of Choice or to Have Counsel Appointed.

"The right to select counsel of one's choice... [is a] consti

tutional guarantee [of the Sixth Amendment]." United States v. Gonz

ales Lopez, 548 U.S. 140 (2006). "In our adversary system of criminal

25.

justice , any person haled into court, who is to poor to hire a

lawyer, cannot be assured a fair trial unless counsel is provided

for him." Gideon,v. Wainwright, 372 U.S. 355, 344 (1963). In the case

sub judice, the defendant was denied both his right to counsel of <

choice and to have counsel appointed by the court all in one swoop;.

III.

An Accused's Failure to Assert Their Right to a Speedy Trial

and the Delay Before trial Should Not Be Attributed to the

Defendant When They Are Incarcerated and Without an Attorney.

Supervisory Power of this Court is Required.

The supervisory power of this Court are required because the

federal district court entirely departed from this Court's decisions

and the Antiterroism and Effective Death Penaly Act of 1996 (AEDPA).

The district court relied on and cited Texas state court decisions

to deny the defendant relief on his petition for writ of'habeas cor-,

pus 28 U.S.C. §2254. Specifically, the district court ignored this

Court's decisions in Barker v. Wingo, 407 U.S. 514 (1972), Boggett v.

United States, 505 U.S. 647 (1992), and Vermont v. Brillon, 566 U.S.

81 (2009), and the limited review of §2254 to U.S. Supreme Court cases.

Contrary to and an Unreasonable Application of U.S. Supreme

Court Decisions in Barker, Doggett and Brillon.

The district court adopted the state court's decision which:

(1) Put the burdon on the defendant for not bringing himself to trial;

(2) attributed the delay before trial

and failure to assert right to

a speedy .trial, .against;the defendant when he was incarcerated and

without counsel. This conflicts and contrvenes this Court's opinions.

that these factors cannot be attributed to a idefendant in. this case.

26.

District Court Relied on and Cited State Court Cases on

§2254 Federal Habeas Corpus Review Outside the Limited

Scope of Review Mandated By the AEDPA and U.S. Supreme

Court Decisions.

Congress enacted the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA), Pub. L. 104-132, 110 Stat. 1214

on April 24

1996. Title I of the Act applies to all federal petitions for hab

eas corpus filed on or after its effective date. Lindh v. Murphy,

521 U.S. 320, 326-27 (1997). By its terms, AEDPA applies to federal

review of state court decisions, not to the specific explanations

that support them. 28;-U.S.C. §2254(d). This distinction might seem

technical, but the U.S. Supreme Court's decision in Harrington v.

Richter rendered it critical. 562 U.S. 86 (2011).

Federal habeas relief may not be granted for claims subject

to §2254(d), unless it is shown that the earlier state court's dec

ision "was contrary to"federal law then clearly established in the

holdings of the U.S. Supreme Court, §2254(d)(l); Williams v. Taylor,

529 U.S. 362, 412 (2000); or that it "involved an unreasonable appli

cation of" such law, §2254(d)(l); or that it "was based on an unrea

sonable determination of the facts" in light of the record before

the state court, §2254(d)(2).

In the case sub judice, the U.S. District Court relied on and

cited the same state case law as the Second Court of Appeals of

Texas did to deny the petioner's federal claims. Although the cases

analyzed the speedy trial principles in Barker v. Wingo, 407 U.S.

514(1972), they were contrary to and an unreasonable application of

U.S. Supreme Court decisions in Barker, Doggett v. United States,

505 U.S. 647 (1992), and Vermont v. Brillon, 556 U.S. 81 (2009).

27.

CONCLUSION

For the foregoing reasons, certiorari should be granted in

this case.

Respectfully submitted,

Rodney A. 'urdsman #02170782

TDCJ-CID, Robertson Unit

12071 Farm to Market Road 3522

Abilene, Texas 79601

September 13, 2023.

28.

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.