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f/sFJLED Si2_0'CLOCK_£_M Jj&MtJCadAw**d, Da*>-J&*i!>wted ' JUN 25 2015 SUBJECT: State briefly the problem on which you desire assistance.
'JEMIMA ''/iwy/*/*/*/. . / 7
Name Ijg^cJC$MM>id N o 0/#$4Mt Unit: A %k^_ Living Quarters; L; /i / Vvi_rk ," aignment — / _ DISPOSITION: (Inmate will not write in this space) :ss3daav i/w 'Oejoyjo }ojmw pue aujei\j) :01
:VI-60 (Rev. 11-90) ^c* 7/16/2014 Birth Record Detail
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Birth *. Child
Death ., a. Name APRIL DESHAUN GRIFFI Military Date Of Birth 4/1/1982 Sex Support fj Parents
Father
Mother
Washington County database was updated on 7/15/2014 bzOOfi Ecioc.tR!;. Aii Right* Re«!V(:!'J tli%nV lunitl
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Birth Child
Deatri'MilliljSs Name JERLINE RENA GRIFFIN Military Date Of Birth 11/14/1978 Sex iiisii^s Parents
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http://24.173.220.131/Washing ton/BirthRecordDetail.aspx?id=19897 1/1 r l Certificate of Service
xoneIJa/«df'd*Aefi*( humbly request permission from the court to serve original copyto the clerk of the court in order to make the necessary copiesto be served upon the appropriate parties, whom will participate in the hearing.
Respectively Submitted,
David Earl Sweed, #01457548 Nathaniel J. Neal Unit 9055 Spur 591 Amarillo, Texas 79107 Court of Criminal Appeals Of Texas P;0-. Box 12308 Austin, Texas 78711
David E. Sweed Civil Action No petitioner A-10-CA-393-LY V. William Stephens Director of TDCJ- Respondent
MOTION FOR RECONSIDERATION Pursuant to Fed. R. Civ. P. -28§2244(c)(d)(1)(2) ; 28§2254(«)(d)(l)(2) Now comes David E. Sweed, petitioner, in the above numbered cause, brings this his Motion for Reconsideration pursuant to Fed. R. Civ... P.-28§2244 and will show the Court the .following: 28§2254(*Xd)(l)(2) 1-)
Pursuant to slack v. McDaniel, 529 U.S. 473,484 120-S.CT.1587, 146 L. Ed. 2d. 542 (2000) at 1604, a slightly different standard applies when claims are dismissed on procedural grounds; in that instance a petitioner must show, at least, that jurists of reason would find it debatable, whether the petition states a valid claim of the denial of a constitutional right, and that jurists^df : reason would find it debatable whether the district court was correct in its procedural ruling (emphasis added). Petitioner maintains his Actual innocence and will proceed to show the Gourt mitigating facts that stemmed/existed from the very beginning of the case, petitioner alleged that Counsel failed to properly investigate the alleged crime scene, the alleged victim testified that petitioner had only abused her one time that she could remember and what she remembered was petitioner had taken her into the garage of his home located at 19021 Sweed Road in the city of Washington, Washington County Texas. The alleged victim testified that petitioner had held her down with one hand and used the remote-control garage door opener to close and lock the doorT
Petitioner insisted that counsel go to., the home where he would discover the garage at the residence does not operate with a [garage door opener] as testified to by the alleged victim. To support this claim petitioner presents newly discovered evidence that supports previously submitted evidence that counsel suppressed/or failed to disclose/or investigate. 2.) Petitioner asserts that consel could have never presented a sound trial defense, where he failed to disclose exculpatory, mitigating favorable^evidence, evidence that he could have used to impeach, &M Or prdve bias, Or interests of witnesses relevant to the credibility thereof, violating petitioner s 5th, 6th, 14th U.S. Constitutional Rights. I' Peffioner points the courts attention to the record but reminds the court he is not entitled to fie record, so he relies solely on his memory.
Thestates witness alleged with certainty not doubt that petitioner had held her down with one hand and used the remote garage door opener to open then close and lock the door. Thedoor is approximately 7 feet in height and he would most certainly have to use two hands to bing the door down.
However, evidence clearly suggests he used a garage door opener where one has never existed.
As ^petitioner stated, counsel could have never presented him with a sound trial defense that allows! petitioner to be convicted by insufficient evidence.
3.)
Material evidence favorable to defendant has been discovered since and/or during trial but too lafe to raise at trial, investigate, or marshal evidence thereon. New trial should be granted underT.C.C.P. sec.40.001.
Dm process due course of law and equal protection require granting a new trial under such circunstances, see U.S. Constitutional Amendments 5, 6, 9, 10, and 14 Tex. Const. Arts. - 1 sec. 11, 13, and 19 T.C.C.P. Arts. 1.04, further the evidence is mitigating: see Milburn v. State, 154W. 2d.267 (Tex. App.-Hou [14th] 2000) No Pet; State v. Gonzales, 855 S.W. 2d.692 (Tex. Cr. App. 1993). Moreover, the new evidence 1.) was unknown or unavailable to defendant at the time of trial or too late during trial to use, investigate or marshal needed evidence (Ei 2.) is admissible and not merely cumulative, corroborative, collateral or impeaching 3.) the new evidence is probably true and would probably bring about a different result on another triil, and 4.) failure to discover or obtain same was not due to a lack of diligence.
[Cainsel] suppressed facts or secreted witnesses capable of establishing petitioner's innocenceT.C.C.P. Arts. 2.01 and 2.02 Duggan v. State, 778 S.W. 2d. 465,468 (Tex. Cr. App. 1989); Roageau v. State, 738 S.W. 2d 651,657 (Tex. Cr. App, 1987) over-ruled on other grounds, Harris v. State, 784 S.W. 2d. 5(Tex. Cr. App. 1989). Also see Brady v. Maryland and its Federaiand Texas progeny. This includes evidence favorable to the accused, exculpatory, impeachinj, showing bias or interest of, witnesses relevant to the credibility thereof or otherwise elevant or helpful to cross-examine and/or confront such witnesses and inculpatory evidence, a>r mitigating of the degree or the offense or punishment. Brady Supra, U.S. v. Bagley, 4B U.S. 667 (1985); Pennsylvania v. Ritchie, 480 U.S. 39,107 S. CT. 989 (1987); Kyles v. WAitley, 115-S.CT. 1555 (1995).
Pefiioner asserts that tenable actual innocence-gateway pleas are rare, and a petitioner does not inset the threshold requirements "unless" he persuades a district court that, in light of the new eiidence, no juror, acting reasonably would have voted to find him guilty beyond a reasonable doubt. Mcquiggin v. Perkins, 185 L.Ed. 2d-1019; (2013), The United States Supreme Court has recognized that a prisoner otherwise subject to defenses of abusive or successive use of the writ of habeas corpus may have his federal constitutional claim consideredon the merits if he makes a proper showing of actual innocence. In other words, a credible showing of actual innocence may allow prisoner to pursue his constitutional claim on the merits rot withstanding the existence of a procedural bar to relief. \ Petitioner presents eight (8) Exhibits marked A - H photographs of the alleged crime scene garage located at 19021 Sweed Road. The photos are evidence of the garage externally and internally as it appears in its original state. Each photo is marked on the reverse.
Chronological Order of Relevant facts: 1. The home was originally built for petitioner's parents in 1996. 2. The home was completed in the year of 1997. 3. Petitioner moved into the home that same year. 4. The [garage] of the home was never fully completed, see: Exhibit A is the exterior of the garage door (there is "no" locking device installed on the door). The panels have not been disturbed; the bottom right hand corner of the door is (recently sustained damage).
In Exhibit B the Court will notice there is a young individual standing in the photo, and the Court should view Exhibits E, F, G, H as the young individual is demonstrating that the garage door is opened "manually" and not by a remote-control garage door opener as it was testified by the States key witness/alleged victim.
In petitioner's Exhibit D, the photo shows what contractors call the overhead header of the garage door from the interior view. As the Court views Exhibit D it will notice that the photo's center has an ink drawn box; this box indicates the never installed center bracket that aids holding a spring loaded tension bar that aids in raising and lowering the garage door. The tension bar extends left to right across the top of the door; it was never installed.
In Exhibits G and H it is being demonstrated that there is a 2x4 board attached to the ceiling of the garage serving as a (bumper) of sorts to prevent the door from coming off the track and crashing down. See Exhibit G. If a garage door opener had been installed there would be no need for the 2x4 or 1x4.
In Exhibit H notice there is a second board 1x4 plank attached to the ceiling, attached to serve as a pressure brake support that applies pressure to the door upwards holding the door in position with the aid of the young individual. As the Court can see by the Exhibits there is "no" garage door opener or lock on this door. Exhibit C, internal side of the door, shows there is no locking device on this door. As petitioner has claimed from the very beginning, this incident never occurred.
Petitioner also presents three (3) additional sworn affidavits from three individuals labeled Exhibits i, J, K.L (Exhibit L. House-address & Garage Apt., 19021 Sweed Road, Washington Texas 77880) 1. Raven Anderson, who was raised in this very home, has resided in the home to the present date, and is a credible outstanding citizen in her community 2. Truman Sweed is petitioner's brother who assisted in the building of the home and is a General Contractor. 3. Marilyn Smith is petitioner's sister who has resided in the home, but is now living in Harris County.
All of these witnesses including witnesses who submitted affidavits back in 2010 could provide accurate testimony as to the type of home the residence is and its overall condition. H
This rule, or fundamental miscarriage of justice exception, is grounds in the equitable discretion of habfas courts to see that federal constitutional errors do result in the incarceration of innocent persons.
Petitionerhas asserted that he is actually innocent of this offense and maintains his innocence that has resulted in a [Miscarriage of Justice] as his counsel refused to establish the facts supporting.fetitioner's innocence.
The United States Supreme Court has applied the miscarriage of justice exception to overcome various procedural defaults . . .
Petitionerbelieves that had the jurors heard the testimony from the witnesses writing the sworn affidavits, saw the photo exhibits of the alleged garage/location of assault, and/or were allowed to hear lie states witness Jerlin Griffin testify during cross-examination as to why she hates the entireSweed family which the Trial Court suppressed, surely the jurors would have determined thatiiis witness was in fact bias and had a personal interest to prejudice petitioner. It is quite clear Jiat the states star witness Teiraka Griffin was coached into saying what she said due to one fact that even a ten year old child surely would remember without incident whether the gaage door opened manually or by remote control had he/she been to the residence she/heclaimed an assault had occurred. It is obvious the states witness Jerlin Griffin had not been tothe home and assumed it had a garage door opener as the garage does look modern and updited from the outside of the residence, but someone who has never frequented the home/resideice would not have knowledge of a garage door opener not existing. . .would incriminate himsdf as the witness has done in this instance.
Petitioner asserts that without "DNA" evidence such as a rape kit having been conducted and or collected, coupled with the photos presented, it is insufficient to warrant guilt because the tesinony is not corroborated by the facts. Surely the mitigating evidence would leave a reasona'He jury to debate over the facts and/or truthfulness of the witnesses and would conclude a different outcome where he has presented adequate, sufficient evidence establishing his actual innocence and it should warrant encouragement to proceed further, Miller-El v. Cockell, 537 U.S. 322,327,123 S.CT 1597-at 1604 (2000).
The evidence/Photo Exhibits and Sworn Affidavits are very damaging to the case, the story and the fafe contradict themselves, and the same thing that convicts you can also prove your innocence.
Prayer
Petitioner prays that this Honorable Court grants him relief by granting him this his Motion for ConsUeration to proceed further and knows that a Miscarriage of Justice has occurred by denjng him of Actual Innocence where there exists no scientific DNA biological evidence, and the states star witness' testimony has been compromised to great lengths by not collaborating witothe facts/established evidence.
Petitionerhas claimed from the very beginning Counsel failed/refused to disclose the favorable/mitigatirg evidence to the jury and/or properly investigate his innocence. Exhibit L
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION
David E. Sweed DECLARATION Plaintiff David E. Sweed Civil Action No. v. ,- A-10-CA-393-LY STAtt: OF
I David E. Sweed, hereby declare under no threat or force or promise has any of the Affidavits been presented obtained by the petitioner. Each affidavit was voluntarily submitted.
All photos/Exhibits are of the alleged assault location (garage) located at 19021 Sweed Road in the city of Washington, Washington County, Texas and are in their original state. The scene has not been altered or manipulated in any way for the exception of natural wear and tear.
I hereby declare under penalty of perjury that th^*- "egoing is true and correct.
Executed:. , at the'Neal Unit, 9055 Spur 591, Amarillo, TX 79107.
'",ID #04457548 SUBJECT state briefly the problem on which you desire ass.stance.
Name: A^±^lt^^Z^€£^ Living Quarters: j2_2<2^_ DISPOSITION: (Inmate will not write in this space) .
97th> I-60 (Rev. 11-90) DAVID EARL SWEED 01457548 KN O 39 ID:79389114 [P 2/3]
tJfi&Y From: Raven T Anderson, CustomerlD: 3840301 To (Inmate): DAVID EARL SWEED, ID: 01457548 Date : 2/26/2014 5:18:51 PM EST, Letter ID: 79389114 Location : KN
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7M your fttentfs and family to visit vmwjpay.com to write te'tters- and smd money! £kIu'&;-I ^=- SWORN AFFIDAVIT
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penalty of perjury that the foregoing instrument is true and correct.
1 am a witness to the following truth . The garage door at the
Sweea residence does not operate by.an electronic door opener. The
residence has never had any electronic door opener during the time
Mr. David Earl Sweed has resided at the residence located at 19021
Sweed-Road, in the City of Washington, Washington County, Texas
77880. And does not have an electronic garage door opener,..—, Along
with these pictures as evidence showing no remote opening the garage door. At the residence above.
pectfulLy Submitted,
Ourctan OATH BEFORE NOTARY REPUBLIC
State of Texas County of AjJTCJi -?"P^> being duly sworn, under oath says that he/she is the applicant in the statement above and knows the content of the statement according to belief, and
personal knowledge of the facts stated in the above statement is true and correct.
ctfully Submitted,
SUBSCRIBED AND SWORN TO BEFORE ME THIS 2Q_day of ,hftUfru,
signature of Notary Public tx hi'bd~r ^J_<
SWORN AFFIDAVIT
I tR^sHA"^ ^>c^' F^^& j being duly sworn declare under penalty of perjury that the foregoing instrument is true and correct.
I am a witness to the following truth. The garage door at the
Sweed residence does not operate by an electronic door opener. The
residence has never had any electronic door opener during the time
Mr. David Earl Sweed has resided at the residence located at 19021
Sweed-Road, in".the City of Washington, Washington County, Texas
77880. And does not have an electronic garage door opener, •;. Along
with these pictures as evidence showing no remote opening the garage
door. At the residence above.
Respectfully Submitted,
OATH BEFORE NOTARY REPUBLIC
State of Texas :ounty of 'OCal-D*^ Co being duly sworn,
under oath says that he/she is the applicant in the statement above
and knows the content of the statement according to belief, and
personal knowledge of the facts stated in the above statement is true and correct.
SUBSCRIBED AND .SWORN TO. BEFORE ME TH is P^day of Qcxbimi -, go/4 . "fjS?lAUJWNS0N Signature of No^try Public Zxhrb^ .. K ( SWORN AFFIDAVIT
I J\K&^r<> V* t\ ^^W^-nV^X , being duly sworn declare under penalty of perjury that the foregoing instrument is true and correct.
I am a witness to the following truth. The garage door at the
Sweed residence does not operate by an electronic door opener. The residence has never had any electronic door opener during the time
Mr. David Earl Sweed has resided at the residence located at 19021
Sweed-Road, in "the City of Washington, Washington County, Texas
77880. And does not have an electronic garage door opener.' ":•.'. Along
with these pictures as evidence showing no remote opening the garage
Respectfully Submitted
frtfr lion's otjT-^ OATH BEFORE NOTARY REPUBLIC
State of Texas County of fl/fyfy+s^l being duly sworn, under oath says that he/she is the applicant in the statement above
and knows the content of the statement according to belief, and
personal knowledge of the facts stated in the above statement is true and correct.
R p sp pc f, full y Submitted,
b^FF //o ?? *77 7X SUBSCRIBED AND SWORN TO BEFORE ME THIS ^9^ day of ft/fr- Zalii
of Notary Public 1- = O: = be Certificate of Service
I hereby certify that a true and correct original typed Motion for Reconsideration with eight (8) Photo Exhibits and three (3) Sworn 'Affidavits and one (1) Declaration of Truth has been pre- postage paid and mailed to the U.S. District Clerk at 200 West 8th Street, Room 130, Austin, TX- 78701.
Onthisthe 2__day J^ day of /Laa/jj'L/' /Loa/jjM &Q OJJ'/-W -> */ fle&35%4-.— Respectively Submitted,
David E. Sweed, #01457548 Neal Unit 9055 Spur 591 Amarillo, Texas 79107
SWEED E. D. To File.