Brooks, John Daniel

• Court: Court of Appeals of Texas
• Decided: March 27, 2017
• Docket: WR-86,165-02
• Status: Published

Opinion

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EX PARTE ' § the 263RD DISTRICT COURT § OF OOHN DANIEL BROOKS § HARRIS COUNTY, TEXAS

MOTION FDR SUMMARY JUDGEMENT

Comes new the applicant, JOHN DANIEL BROOKS, in the above styled cause of aetion end files this MOTION FDR SUMMARY JUDGE MENT and would offer the COURT THE FOLLDliJING: A

I. The APPLICANT FILED THE APPLICATION FDR URIT OF HABEAS CORPUS ON DECEMBER 15, 2011_. The State did not, aceording to CODE OF CRIMINAL PROCEDURE OCCrP) Art 11 .07, seo'VCa-'), answer in the 180 day period. The State's answer was filed on FEBRUARY 10, 2017, more than four (A) J YEARS after their deadline., and waF"dnly filed then because the applicant- filed a MANDAMUS with the COURT OF CIRMIANL APPEALS. The issues were NEVER DESIGNATED, therefore in denying the allegations the STATE admitted there was no dispute in issues. Uhen compelled -to respond to the writ,, by the COURT OF CRIMINAL APPEALS, the State decided to answer ALL THE ALLEGA- tions set forth in the application, four and ■% yearsCfeb ID, 2D17)after the deadline (12 June 2012) for such answer was due in the-.court of criminal appeals. If the State Court did not assess the merits of a claim properly raised in a habeas petition, the deference due under AEDPA does not apply: MAPLES, U STEGALL, 340, F3d, 433, 436 (6th Cir 2008). THIS IS A PROCEDURAL DEFAULT. II.

NO OPPORTUNITY TO PRESENT A COMPLETE DEFENSE

Please see LUNBERRY v HQRNBECK, 605 F3d 754 (CA 9 2010). DUE PROCESS included a right to "A meaningful opportunity to present a complete defense". CRANE V KENTUCKY, 476, US 683 690 [IDS St Ct 2142 [1984] . The State, in it's VIOLATION OF CCrP ar.t 11.07 Sec 7(a) denies the paplicant an' opportunity to present his .complete defense, and in light that his DIS COVERY 'MOTION was stamped by the clerk but not answered,by the court, denied the opportunity for the applicant to pre sent a complete defense. THAT CONSTITUTIONAL RIGHT IS VIOLATED by the exclusion of probative admissible Evidence(s) that another person may have committed the crime (THE CRIMINQLOGIST REPORT DETAILED THAT TYPE B BLOOD liJAS ON THE KNIFE USED TO SECURE THE CONVIC TION AND THE COMPLAINANT AND APPLICANT HAVE TYPE A BLOOD) .

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In the exact same meaning of FDQTMAN U SINGLETARY, 978, F 2d 1207 (CA1 1992) pg 1212, the DISTRICT COURT should not Jplace the burden of a habeas petitioner to prove what he alleges in his STATE COURT MOTION for postconviction relief ujhen the STATE (INTETIDNALLY DELAYS AND VIOLATES CCrP art 11 .07 Sec 7(a))CDURT LOSES THE MOTION THROUGH NO FAULT OF THE PETITIO NER. THIS application for URIT OF HABEAS CORPUS WAS DULY AND TIMELY FILED (AFTER THE STATE REOPENED THE CASE IN 2007) AND LAY LOST, OR ON THE DESK AND UNPROCESSED FOR FIVE YEARS AND 2 MONTHS.

IV.

VIOLATION OF CCrP ART 11.60- REFUSING TO EXECUTE WRIT

On May 11, 2016, in the 263RD DISTRICT COURT OF HARRIS COUNTY TEXAS, WITH JUDGE 'DIM WALLACE ON THE BENCH, THE APPLI CANTS (DNA) ATTORNEY (CHERI DUNCAN, PUBLIC DEFENDERS OFFICE) AND THE APPLICANT,WITH A COURT REPORTER, THE APPLICANT ASKED JUDGE WALLACE THE FOLLOWING: JUDGE WALLACE: "that concludes this..." APPLICANT: sir what about my writ of habeas corpus?" JUDGE WALLACE: I-don'.t knoiu nothin bout no WRIT OF HABEAS CORPUS" APPLICANT: sir i filed it over YEARS AGO JUDGE WALLACE: i aiht seen no habeas corpus in this case.

This ARROGANT, UNINTELLEGENT REMARK exemplifies the nature of resentment the applicant has met-': in this habeas procedding. THIS IS A VIOLATION OF CCrP ART 11.60 REFUSING TO EXE CUTE WRIT...THIS IS A " WANTON ( SJYEAR)DELAY . JUDGE WALLACE SHOULD BE HELD LIABLE FOR A FINE AS FDR CONTEMPT OV COURT". JUDGE WALLACE AlJSO VIOLATED CCrP ART 11 .62 REFUSAl TO GIVE A COPY OF PROCESS, BY HAVING THE APPLICANT IN "his custody and refusing upon demand, to furnish a copy of the process under which he holds the person, (and) is guilty of an offense, and should be dealt with as provided by art t 11 .34 CCrP for refus3.tv to return the writ'therin required.

V.

In light of the fact(s) that the STATE:

1. FAILED TO AN5ER IN 120 days 2. NEVER DESIGNATED THE ISSUES TO BE RESOLVED 3. (WHEN compelled BY MANDAMUS) ANSWERED'AND DENIED ALL ALLEGATIONS THIS COURT SHOULD ENTER SUMMARY JUDGEMENT IN FAVOR OF THE AP PLICANT.

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AND ORDER HI5 RElJEASE FROM PRISON. O —f r,K_ 2^3 _| day „ of47 -VWvgIv iAt*. -U 2017 SIGNED THIS_

EE_&R13DK5 WAiXACE PACK UNIT 2400 WACLACE PACK ROAD NAUA50TA, TEXAS 77868

INMATE DECLARATION

T inUN DANEIL BROOKS, DO DECLARE UNDER ■PENALTV OF PEROURY THAT rSREriNG IB TRUe'aHD CDRRECT TGTHE BEST OF HY KHO.- LEDGE. 12^ 201 7. □-p SIGNED THIS

Q ODH.NyD\^NX£X bSSSks WALLACE PACK UNIT 2400 lilAliLlACE PACK ROAD NAVASOTA, TEXAS 77868

certificate of service

the foregoing instrument was PAli.CED IN THE US MAIL ADDRESSED TO .THE FOLLOIUQNG:

COURT OF CRIMINAL APPEALS CHRIS DANIEL PC BSX '12308 HARRIS COUNTY DISTRICT CLERK CAPITOL STATION", PO BOX 4651 AUSTIN, TEXAS 7B711 HOUSTON, TEXAS 77210-4651

SIGNED THIS Z3 day of 2017

HN EL K5

- 3 - •: /'\ CAUSE NO 33DD63-.A

EX PARTE § IN THE 263RD DISTRICT COURT

§ OF

JOHN DANIEL BROOKS, § HARRIS COUNTY, TEXAS'^ APPLICANT

ORDER

THIS COURT ORDERS THAT THE APPLICANT'S MOTION FDR SUM. MARY JUDGEMENT BE GRANTED.

SIGNED THIS DAY OF 20

JUDGE PRESIDING

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