•RErCAUSE NO-11-11408-C,application for writ of habeas corpus 'ft, 3R 3-0*1 Dear Court Clerk
Enclosed please find and file with the Court the following
1.MOTION FOR ENTRY OF ORDER DESIGNATING ISSUES,DIRECTING THE SUBMISSION OF.AFFIDAVITS AND FOR EVIDENTIARY HEARING
2.ORDER DESIGNATING ISSUES AND DIRECTING THE SUBMISSION OF AFFIDAVITS FROM APPLICANTS COUNSEL. MOTION DENIEI Thank you for your attention to this matter. UAIfc!., BY: °f
THOMAS A.AMBRIATI TDCJ-ID#1760718 McConneil Unit •' 3001 S.Emily Dr. Beeville,Texas December 24/2014 78102
This document contains some p'ges that are of poor quaUty at the time of imaging.
COURT OF CRIMINAL APPEAL JAN 05 2015
Abel Acosta, Clerk
l. CAUSE NO.11-11408-C
EX PARTE . § IN THE
THOMAS ANTHONY AMBRIATI, f C°URT °F CRIMINAL APPEALS .§ AUSTIN,TEXAS Pro se Applicant. § MOTION FOR ENTRY OF ORDER DESIGNATING ISSUES/DIRECTING THE SUBMISSION OF AFFIDAVITS AND FOR EVIDENTIARY HEARING
TO THE HONORABLE JUDGE AND JUDGES OF SAID COURT:
COMES NOW,Thomas A.Ambriati/Pro se Applicant in the pending
application for post conviction writ of habeas corpus/and respect
fully moves this Court,pursuant to Article 11.07,§ 3,et seq.,of
the Texas Code of Criminal procedure,to enter an Order Designating
Issues And The Submission Of Affidavits and,pursuant to that. Order,
schedule and hold an evidentiary hearing,followed by entry of
appropriate Findings and Recommendations,and would show the Court:
I.
Applicant filed his first writ application and was granted an
out time petition for discretionary review which Was refused,he
then filed his second writ application which was denied,on the
grounds that it was non-compliant,Applicant now files this third
writ application/seeking reversal of his conviction,on grounds
that his trial counsel and his appellate counsel on appeal were
both ineffective,among other trial court errors and prosecutorial
misconduct errors,and actual innocence.
II.
Applicant was denied effective assistance of counsel at trial,
when his counsel rendered the trial an unfair and unreliable
adversarial testing process by counsel's errors,the State's own
answer to the present writ application-C,points to the need for
1. appropriate submissions of affidavits from trial counsel,and to
the need for an evidentiary hearing,so Applicant can cross-examine
trial counsel in the crucible of the courtroom,where its the only
appropriate means to find where the truth lies in this case.
Applicant is entitled to an evidentiary hearing and the only
appropriate manner is by that hearing to do proper and reliable
findings of fact.
III.
Applicant claims he was denied effective assistance of counsel
by appellate counsel failing to raise errors on appeal that would
have required a reversal,the State's answer to these claims also
point to the need for appropriate affidavits and an evidentiary
hearing,the State made several statements in there answer to this
application that appropriate affidavits are needed,Applicant now
asserts that the only appropriate manner would be the submission
of affidavits and an evidentiary hearing,.again the only true way
to find the truth is in the crucible of the courtroom,as. the U.S.
Supreme Court ruled in Grawford v.Washington»541 U.S.36,61-62(2004).
IV.
The State's answer to the prosecuotrial and trial court errors
also points to the need for an appropriate evidentiary hearing,to
find the truth in the crucible of the courtroom,where it is the
only appropriate manner for truth finding,the State was correct
that this was in the record,which makes it even more appropriate
for an evidentiary hearing to find the truth in the courtroom,it
is impossible for Applicant pro se to adequately argue his points
of error,when he is incarcerated and without an attorney,if the
Court orders an Evidentiary hearing it would be appropriate to
2. appoint Applicant an attorney,after determining Applicant is indigent.
V.
Applicant is not claiming a right to confront his trial and
appellate counsel as if this was a criminal trial.However,he asserts
that the only way the Court can properly assist the Court of Criminal
Appeals in its habeas corpus role and truely resolve the question
of whether Applicant was denied the effective assistance if counsel
is to schedule a live evidentiary hearing,after the submission of
comprehensive affidavits,at which time Applicant would be able to
both introduce live testimony supporting his claims,and test the
reliability of the statements made by his former counsel in the
"crucible" of the courtroom.
VI.
Applicant filed the current application with supporting memo
randum with exhibits,in Computor Generated Format,that was within
and under the word limit set forth in Texas Rule of Appellate Pro
cedure Rul 73.1 and .73.2,the trial court is incorrect in its finding
and this also point's to the need for appropriate fact findings on
the. issue,since the second writ application was also dismissed
on non-compliance of the rule 73,the second writ was incompliance,
and now the trial court is claiming this writ application does not
comply with Rule 73.1 and 73.2,this points directly to the need
for this Court to do appropriate findings on the correctness of
the trial court's findings on the compliance rule of the memorandum
of law in support of this current application for writ of habeas
corpus. Applicant would suggest that,due to the time required to obtain witnesses and ensure their presence,as well as to prepare for a full and complete hearing,the hearing be Ordered by this Court since the trial Court has passed it on,and the hearing be schduled no less than sixty days after the submission of affidavits from
Applicant's trial and appellate counsel.
PRAYER FOR RELIEF
WHEREFORE,Applicant pryas that this Court enter an'Order for
the trial court to Designate Issues,directing Applicant's trial
and appellate counsel to file comprehensive AFFIDAVITS,and there
after, to set an evidentiary hearing or at least allow both sides
to further address the need ofr an evidentiary hearing after con sideration of those affidavits.
Thereafter,this Court should allow both sides to submit proposed findings of fact and conclusions of law,as allowed by Article 11.07 et seq.,and to recommend that the Court of Criminal Appeals grant
such relief to which Applicant is entitled.
I,Thomas A.Ambriati,hereby declare under penalty of perjury
the foregoing is true and correct,I am an incarcerated inmate at
the McConnell Unit,located in Beeville,Bee County,Texas.
Signed this the 24,day of December, >2014.X.f|<^i1^ Ca^CmJIv^lL THOMAS A.AMBRIATI McConnell Unit TDCJ-ID#1760718 3001 S.Emily Dr. Beeville,Texas 78102
CERTIFICATE OF SERVICE
I,Thomas A.Ambriati,hereby certify that a true and correct
carbon copy of this foregoing motion has been sent via U.S.Mail,
to .-CRIMINAL DISTRICT ATTORNEY JEFFERSON COUNTY, TEXAS, 1085 Pearl St,
3rd Floor,Beaumont,Texas 77701.
Signed this the 24 day of December,2014.X \jXum^>0 uO^tjTWXii, ^THOMAS A.AMBRIATI
5. CAUSE NO.11-11408-C
EX PARTE § IN THE
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•RErCAUSE NO-11-11408-C,application for writ of habeas corpus 'ft, 3R 3-0*1 Dear Court Clerk
Enclosed please find and file with the Court the following
1.MOTION FOR ENTRY OF ORDER DESIGNATING ISSUES,DIRECTING THE SUBMISSION OF.AFFIDAVITS AND FOR EVIDENTIARY HEARING
2.ORDER DESIGNATING ISSUES AND DIRECTING THE SUBMISSION OF AFFIDAVITS FROM APPLICANTS COUNSEL. MOTION DENIEI Thank you for your attention to this matter. UAIfc!., BY: °f
THOMAS A.AMBRIATI TDCJ-ID#1760718 McConneil Unit •' 3001 S.Emily Dr. Beeville,Texas December 24/2014 78102
This document contains some p'ges that are of poor quaUty at the time of imaging.
COURT OF CRIMINAL APPEAL JAN 05 2015
Abel Acosta, Clerk
l. CAUSE NO.11-11408-C
EX PARTE . § IN THE
THOMAS ANTHONY AMBRIATI, f C°URT °F CRIMINAL APPEALS .§ AUSTIN,TEXAS Pro se Applicant. § MOTION FOR ENTRY OF ORDER DESIGNATING ISSUES/DIRECTING THE SUBMISSION OF AFFIDAVITS AND FOR EVIDENTIARY HEARING
TO THE HONORABLE JUDGE AND JUDGES OF SAID COURT:
COMES NOW,Thomas A.Ambriati/Pro se Applicant in the pending
application for post conviction writ of habeas corpus/and respect
fully moves this Court,pursuant to Article 11.07,§ 3,et seq.,of
the Texas Code of Criminal procedure,to enter an Order Designating
Issues And The Submission Of Affidavits and,pursuant to that. Order,
schedule and hold an evidentiary hearing,followed by entry of
appropriate Findings and Recommendations,and would show the Court:
I.
Applicant filed his first writ application and was granted an
out time petition for discretionary review which Was refused,he
then filed his second writ application which was denied,on the
grounds that it was non-compliant,Applicant now files this third
writ application/seeking reversal of his conviction,on grounds
that his trial counsel and his appellate counsel on appeal were
both ineffective,among other trial court errors and prosecutorial
misconduct errors,and actual innocence.
II.
Applicant was denied effective assistance of counsel at trial,
when his counsel rendered the trial an unfair and unreliable
adversarial testing process by counsel's errors,the State's own
answer to the present writ application-C,points to the need for
1. appropriate submissions of affidavits from trial counsel,and to
the need for an evidentiary hearing,so Applicant can cross-examine
trial counsel in the crucible of the courtroom,where its the only
appropriate means to find where the truth lies in this case.
Applicant is entitled to an evidentiary hearing and the only
appropriate manner is by that hearing to do proper and reliable
findings of fact.
III.
Applicant claims he was denied effective assistance of counsel
by appellate counsel failing to raise errors on appeal that would
have required a reversal,the State's answer to these claims also
point to the need for appropriate affidavits and an evidentiary
hearing,the State made several statements in there answer to this
application that appropriate affidavits are needed,Applicant now
asserts that the only appropriate manner would be the submission
of affidavits and an evidentiary hearing,.again the only true way
to find the truth is in the crucible of the courtroom,as. the U.S.
Supreme Court ruled in Grawford v.Washington»541 U.S.36,61-62(2004).
IV.
The State's answer to the prosecuotrial and trial court errors
also points to the need for an appropriate evidentiary hearing,to
find the truth in the crucible of the courtroom,where it is the
only appropriate manner for truth finding,the State was correct
that this was in the record,which makes it even more appropriate
for an evidentiary hearing to find the truth in the courtroom,it
is impossible for Applicant pro se to adequately argue his points
of error,when he is incarcerated and without an attorney,if the
Court orders an Evidentiary hearing it would be appropriate to
2. appoint Applicant an attorney,after determining Applicant is indigent.
V.
Applicant is not claiming a right to confront his trial and
appellate counsel as if this was a criminal trial.However,he asserts
that the only way the Court can properly assist the Court of Criminal
Appeals in its habeas corpus role and truely resolve the question
of whether Applicant was denied the effective assistance if counsel
is to schedule a live evidentiary hearing,after the submission of
comprehensive affidavits,at which time Applicant would be able to
both introduce live testimony supporting his claims,and test the
reliability of the statements made by his former counsel in the
"crucible" of the courtroom.
VI.
Applicant filed the current application with supporting memo
randum with exhibits,in Computor Generated Format,that was within
and under the word limit set forth in Texas Rule of Appellate Pro
cedure Rul 73.1 and .73.2,the trial court is incorrect in its finding
and this also point's to the need for appropriate fact findings on
the. issue,since the second writ application was also dismissed
on non-compliance of the rule 73,the second writ was incompliance,
and now the trial court is claiming this writ application does not
comply with Rule 73.1 and 73.2,this points directly to the need
for this Court to do appropriate findings on the correctness of
the trial court's findings on the compliance rule of the memorandum
of law in support of this current application for writ of habeas
corpus. Applicant would suggest that,due to the time required to obtain witnesses and ensure their presence,as well as to prepare for a full and complete hearing,the hearing be Ordered by this Court since the trial Court has passed it on,and the hearing be schduled no less than sixty days after the submission of affidavits from
Applicant's trial and appellate counsel.
PRAYER FOR RELIEF
WHEREFORE,Applicant pryas that this Court enter an'Order for
the trial court to Designate Issues,directing Applicant's trial
and appellate counsel to file comprehensive AFFIDAVITS,and there
after, to set an evidentiary hearing or at least allow both sides
to further address the need ofr an evidentiary hearing after con sideration of those affidavits.
Thereafter,this Court should allow both sides to submit proposed findings of fact and conclusions of law,as allowed by Article 11.07 et seq.,and to recommend that the Court of Criminal Appeals grant
such relief to which Applicant is entitled.
I,Thomas A.Ambriati,hereby declare under penalty of perjury
the foregoing is true and correct,I am an incarcerated inmate at
the McConnell Unit,located in Beeville,Bee County,Texas.
Signed this the 24,day of December, >2014.X.f|<^i1^ Ca^CmJIv^lL THOMAS A.AMBRIATI McConnell Unit TDCJ-ID#1760718 3001 S.Emily Dr. Beeville,Texas 78102
CERTIFICATE OF SERVICE
I,Thomas A.Ambriati,hereby certify that a true and correct
carbon copy of this foregoing motion has been sent via U.S.Mail,
to .-CRIMINAL DISTRICT ATTORNEY JEFFERSON COUNTY, TEXAS, 1085 Pearl St,
3rd Floor,Beaumont,Texas 77701.
Signed this the 24 day of December,2014.X \jXum^>0 uO^tjTWXii, ^THOMAS A.AMBRIATI
5. CAUSE NO.11-11408-C
EX PARTE § IN THE
THOMAS ANTHONY AMBRIATI, f CGURT °F CRIMINAL APPEALS § AUSTIN,TEXAS Pro se Applicant. § ' ORDER DESIGNATING ISSUES AND DIRECTING THE SUBMISSION OF AFFIDAVITS FROM APPLICANT'S COUNSEL
Before the Court is the application for writ of habeas corpus
filed by THOMAS A.AMBRIATI.The Court,after reviewing the writ and
the supporting documentation[including the "memorandum Of Facts
And Law(with exhibits)in Support of the application,the State's
Response and the trial court's finding,this Court grants the
"Motion For Designation Of Issues And Directing Submission Of
Affidavits From Trial And Appellate Counsel And Request For An
Evidentiary Hearing,the Court Finds That' Applicant alleges facts
which if true may entitle him to relief as to the cliams raised
in the writ application.
Therefore,the issues of ineffective assistance of trial and
appellate counsel must be resolved and the Court hereby Designates
these issues to be decided in this case,pending further actions of
the Court,it is Ordered back to the trial court for appropriate
submission of affidavits and if a evidentiary hearing is needed
that the trial court appoint counsel after determining if the
Applicant is indigent.
The Clerk of this Court is Ordered to send back.all records
in this case to the Trial Court for further proceedings as to
the motion for designating and submission of affidavits and for
an evidentiary hearing if needed and appropriate.lt is Ordered.
Signed this the day of ,201 . PRESIDING JUDGE