Diaz, Sammuel Medrano AKA Diaz, Samuel

• Court: Court of Appeals of Texas
• Decided: June 8, 2015
• Docket: WR-51,622-02
• Status: Published

Opinion

This document contains some pages ~hat are of poor quality at the time of imaging. · ~samuel Medrano. niaz. 763621 _C:::... ).. F..n, ~'l -._O~_ -.. ·899 'FM '632 Connal1y Url"it · ~..._) U(_t7>CT" ~ kenedy Texas 78119 1 . . · ··

Sq.preme -< Court· of The Jun~ 11 2015 RECEIVED IN United stateoffl:tet of Clerk COURT OF CRIMINft.L APPEALS Was'hi.:ngton 1 DC 20543"tl001 .: JUN, 08 2015

Re: Diaz v. Stephens, Dir., TX DCJ_- Abel Acosta, Clerk (USCA5

De~r ·clerk . Encl·osed ::·;; :::_:· you will find the stamped- origitud: Pefitiq~- for Wri·t. of· ~Cert~c:n;~ri ~riginal recieveq· b.y --~-~1-s eo~r.t;: dn. F~}:)ruary 27, 2015. Che Petitioner has corrected the Affidavit or Declaration. sent to -. him by:this . court. .He has corrected it to the best of his ·knowlege. And.· is r~turning the Petition to this, court for fil!ling witin the 60_day permitted from the_date of this courts letter dated· May 11; 2015 for th~ above case-. ·"the Petitioner has provided the ,Attorney-General for the state of. Texas vitb·a copy as reque~t h~- d~,..,by-_th·i~-~ourts ietter. Petiti,()ner woulq' ftir.t·h·~I' ··::? -~pplittation affida;.tt provide by this c'ourt, ~or nothing mo~~ 'them to aviod the filing, of the original deadling for which Petioner .·had sent timely. and fqr nothing more then to llav~ pe'titioner sign affidav't this. cour.t: ·sent him, and for the filillg of somthing other ' by a.ttorney ·general and .this cou~t ,_, who~ continue . to misle~d Petitioner with the cause of action he~has been in prison for amost 20 ~ear&

now.

Please file. My Petition along with this le.t-ter and bring to ''' the attension . r-, of this court. { the Attorney . ' General.. has be¢n PFOVide a copy of the Otttiginal ·writ of· certiorari. NO. IN THE SUPREME COURT OF THE UNITED STATES

-------------- TERM 2015

vs. WILLIAM S~BPBBNS, DIRECTOR OP TBB YBXAS DBPARYl'mtn OF CRIINAL JUS'fiCB ·CORRECTIONAL IRST.ITD'IIOMS DIVISION, Respondant

ON PHITIOB FOR WRIT OP CBRTIORARI .TO ·THE UNITED S~ATES COURT OP APPEALS POR YBE PIFTH CIRCUIT . ;

PBTITIOR POR WRIT OF CERTIORARI

·/ RBS.PSCTPULLY SOBIUT'lBD

SAMOBL MEDRANO DIAZ I 763621 899 P.M. 632 connally unit : I. 1 KBNSDY, TEXAS 78119

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~ '·· l . ' Question One.Petitioner's Defense· COUrisel was ineffective and aided the Pelle- ectuion, Defense Counsel coerced Peritioner to plead guilty by misleading information, that if he did the Judge would give him a small sentence for . ..

a guilty plead and waiver·of 'frial by jury.

Question TVo. Petitioner recieved ineffective assistance of Appellate Counsel. Counsel was ~sisting the .Govecnment filing appeal in alias 'named caused numooc ·. for assi.sting the Government in affirming an illegal Life Sentence of the Judge in cause #714137. Appeal counsel further failed to provide Petit-

ioner with notice or opinions of the Courts affirming his alleged conviction. Question Three. Outrageous Government Misconduct. The Government got Petitioner to plead guilty to wildly charged indictment of a Prosecutor;in #714137, sent- encing him to LIFE, alleg(.-dly granting appeal in i714137, and carrying the ap~al through the court Sistem in alias State cause :number 806078 with appeal counsel misleading Petitioner with cause of action to deprive him to challenge the Judges Life sentence affirtnea in ~714137.

Question Four. Prosecutor Hisconduct aJ."ld Abuse of Authority. !?rosecutor failed to protect Petitioner from a wrongful conviction and illegal life sentence of the ,Judge.

Question Fiveo Abuse of Discretion by the Trial Judge. Trial Judge abused his discretion excepting Applicant's guilty plead in violation of Rule 11. Not pro.perly admoniuhing Petitioner. And w"hen he read an illegal life sentence

in ~714137 by Judge f~r affirming an illegal conviction adopted and carried

into State alias #806078 it would be affirmed in through the Courts, to mislead

Petitioner ,.lith the cause of action. The lower Courts erred in granting RespO- _ ndents Motion for Summary Judgment where Petitioner clearly pres~nted a genuine issue of material facts as to the Inefectiveness of the Trial Counsel and erred by failing to ~rant issue Petitioners request for c.O.A. when Petitioner clearly met the requirentent for appellate review pursuant to 28 u.s.c. 2254(c)(2).

i ftiJBRAL aa· u;.s.c. 1254 (l) Pg. 8 .

28 u.s.c. 1746 Pg. 19

28 o.s.c. 2253 (c) (2) Pg. 15

28 u;.s.c. 2254 (d) (1} (2) Pg. 7-8

28 o.s.c. _ 2254 .(c)· (l) - Pg. 7

Pg. 14

_F.a.c.P.,RULB 11 Pg •

.$D'f8 B.f.llfU'fBS .

V.A.C.C.P.-ART. 11.07 (3) (d) Pg. 12

v.A.c.c.P. ART. 11.16 Pg. 1-19

·. V.T.tC•A~ ·12;33 Pg.l9 v.:r.c.A: ~~~~ Pg. 1-19

v•..r.c.·A. 21~i1 Pgo 1-19'

5th. Amendment to· the u.s.- COnstitution· Pg. 3

6th. ~t to the o~s~ ·Constitmn1:on Pg. 3

14th. Amendment to the u.s. Cbnstitutiem Pg. 3

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ON PETITION FOR WRIT. OF:-~CERTIORARI 'I'O THE UNITED STATES -~:ri,-.\' -, . • COURT OF APPEALS FOR 'I'HE~~··F\l•F'I'H ,CIRCUI'I' ~ ...:.: ;: .;,:,;:..:_\'. -~ ',_. .. . ,...._ ' ··' l. }-··· '!'"- I. OPINION BELOW i r _.·)_: .._.

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II. JURISDI~TION

I I I . CONS'fTTU'I'-lONAL ·! 'ANb' STA~U~ORY PRIVIOt~S INVOL'VED .:·._ . ' ' ,, .iV. STATEME:NT oif CASE

'\ _v..' ,, REASONS FOR . ... ·} ,· !

:_·:~:~:xi. CONCLUSION

:: __ -'~II. OATH

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b:o.' ·~ '' •; :···: ., '' ·}, I~DEX TO APPENDICES

··:.- 1. A~pendix A. u.s. Couct:of A~peals 5th Circuit beniel ~£ QO.O.A.

Issued on Decewbac 10, 2014~

2. App-endix B. u.s. Cu~:ct.a Notice CouaJ?laint tiled Afld Oi:det"

Graating Forrua Pauperis to P~oceed~

3. A!.'>f>endix ... ·-. ~.. \.J•V• f''" Dh•trict Coucts D~?niel uf c.o.A~ ;_ ~- I (

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Res~ondant Motion foe summacy Judyment ·on First fil~ng Civil

Action H-02-2162 of Oct. 22, 2002.

iv. l

CATALAN v. OOCdllt.L 315 F. 3d. 491, 493 (it.h. Cir. ,2002)

CLARK V. JOHN~ 202 P. 3d. 760, 764 (5th. Cir .2000)'

ORtNlCARD 97 F. 3d. at. 767-68

BILL Ill F. 3d~ at 485 .Quoting 28 U.s.c. 2254 (d) (2) """' SILL V.':\·=;JOONSoN ;·, ./ ~- el

MittER::~i£.·v. JOHNSON 261 F. 3d. 445, 449 (Stb. Cir 2001)

.NEAL v •. ~~ 286 P. ld:· 230,. 246 (5th.· Cir. 2002) OOAN . . v.: :CocK~... 297 r. 3d. 249, 355 (5th. Cir. 2002) _:-}: . . . .

PBNmr V~ JOBNsoo '2l5 F~ ~· 504, 508 (5th. Cb:. 2000) SMITH V:~ COCRREtt 311 F. 3d. 661, 668 (5th. Cir. 2002) 1::· ~::(---~' .· u.s. DI;S.fttlC'f CODR'I CUBS: ~i'v. ' )_;t_ • . tiBBR'lY ( . ~y, ~c .. 477 u.s. 242, 24S (1986) .. • ~

coLBMr.N;;v. .. 'rBOMPsoN so1 u.s. 122, 1so-st (1991) ;~

MalGI V.; CALLI~A . · U. So 721 ( 1998) ·

MURRAY V•' CARRIER 477 u.s. 478 (1986)

SLACK v. MCDANIEL 120 s. :ct. 1595 (2000)

STRICKLAND V. WASHINGTCN 466 u.s. 668, 686-692 (1984)

WILLIAMS V. TAYLOR 120 s •.Ct. 1495 (2000)

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·, \ .. · \ NO. -------------------- IN THE SUPRE~1E COURT . OF THE UNITED STATES :. TERM, 2015 ~----.-.. --~.

SAMUEL MEDRANO DIAZ, PETITIONER~

~.·. ..· .. vs. WILLIAM STEPHENS, DIRECTOR OF THE. TEXAS DEPARTMENT 0~ CRIMINAL JUSTICE CORRECTIONAL INSTITUTIONAL DIVts;oN, RESPONDENT

ON PETITION iOR WRIT OF CERTIORARI·TO

FOR THE FIFTli CIRCUIT .; . .; ~ .

'' TO THE HONORABLE JUSTICES OF SAID COURT:

COMtS NOW, s•muel Medrano Diaz, Petitioner in the above styled ;!' •.

cause presentinQ this his Petition For Writ of Certiorari seeking a Review of the lower Court's Denial to issue a Writ of· Habeas Corpus to his Unconstitutional confinement and restraint from the 262nd Judicial District Court of Harris County, Texas, in the State of Texas v. Sameul Medrano Diaz Cause Number 714137 for the Offense of Murcier. And where the lower Couret:s hold that the Petitioner failed to make a substantial showing of the denial of a Constitutional Right. In support thereof Petitioner would respectfully show this Court the following;

1. ··,l•,

'·' ·:, ' . ' . . OPINION BELOW 'The unpublished written opinion denying Petitioner's Motion ·for ~ehearing For C.O.A. in the Court of·Appeals for the 5th Circuit, ~ppears in Appendix A. ~_.

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·The u~pu.blished :written opinion denying to issue a c.o.A. by ·the U.'S•· Court of Appeals For the 5th C~rcuit Appears in AppencU.a a. ,.. _

The unpublished written opinion ~enying t~:issue a c.o.A. . . in the u.s. District.'Court·appeas in Appendix c. ·-' 1

The U~S. Distric,t Court's Final Judgment Deny~ng Petitioner's Writ o£ Habeas Corpus appeas in Appoa41x D. and . . .. The:'. ·unp~bli~hed written Memorandum ·and Opinion of the u.s. District Court granting Respondants Motion For Summary Judgment · .appeas in ,AppeD41• B. JURISDICTION

The u.s. court of Appeals for the 5th Circu~t_'a opinion in .. this matter was filed on December 10, .2014. A timely Petition for Rehearing ·filed. The u.s.· Court of A.ppeals .Denial of .Motion· was . . {(. f~nJc...:H·e~ . for ~ehearing. was issued onJh.ue.r ~ 2015, Set t·orth in appendix A. Thul this UoS. Supreme Court's Jurisdiction is Inv~ed under Title 28 u.s.c. 1254 (1). _.. ,.

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CONSTITUTIONAL AND STATUTORY PROVISIONS ~NVOLVED ' i ;.

• 1 1 •. Stb. AMENDMENT ~0 THE U.• S. CONSTITUTION, ·

2. 6th AMENDMENT TO THE U~S. CONSTITUTION,_ 3. 14th AMENDMENT TO THE U.S. CONSTITUTION, : ••. \ ' •'. ~· . • ! ' ' .

4. 28· u.s.c-~A;. 2253 (c) (1) tbru (3),

5. 28 p.s •.c..A. 2254· (d) (1) and (2).

''· STATBIIBMT OP CASB·

. Petitioner- was allegea to. have been Indicted for the offense of ch.lraer of his Common l..aw wife in cause number 714137 in the 262m1 ··-Judicial District Court of _Harris county, Texas. The Peti ti_oner: ,. pleaded ·. quil ty on September 12, 19·9·6 to the felony '] offense as·· .charged in the Prosecutors Indictment. ;.~he Trial· Court

l\ Judge assessed punishment at Life confinement in the Texas· Depart~ ' ... •,' ;.,,' ··;>'•:.

~~nt ~f Criminal Justice Division TOCJ. And the Petitioner was . • ' ~ • • : • ' . ,I'. • .

alleged to have been given a Direct Appeal, and Appeal counsel Blanca Lopez to file a Direct Appeal in 714137.

On June 25, 1998 the Judgment was affirmec::l on Appeal by the ' Fourteenth court of· Appeals, D1az v. State; 14-96-01167-CR, 2011 WL 350594 Tex. App. Houston 14th Dist. 1998.

The Mandate was issed·on October 23, 1998.

The Petitioner's Direct Appeal ·Counsel filed a PDR in the Texas court of Criminal Appeals, and Petitioner never ·heaar:a anything from the Court of. Appeals Counsel reg_arding his PDR. No. 98-1244 Refused Sept. 23, _1998.

3.

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·On ~~ovember 18, 2001. Petiti~ner ~ben' n6w pro se filed his first . . •·

Writ_of·Habeas_Corpus State Application and it was denied on '•.;>' . '

l.S, 2002 No. 51,622;01~ _/

· Petitioner then filed his fi~at Application for Federal ~r~t

of Habeas · Cor~us · ·-2254 •' Civil Action Number. H.:o:-02-2162 It was t.. /' ~-;' . ' sign·ed on June 1. And docketed on June 6, 2002.

on· Qc~6~er•a~, 2002 the United States District Court issued Memor~naum · and Order Granting Respondants Motion for Summary ·>

Judgm'erit dismissing Petitioner•s Writ of Habeas Corpus stating

~ Certif~c~te of Appealability will not be issued~ .. ~ ~·

The- Petitioner did not pursue his case to the fifth circuit due to his lack of legal knowledge, lack of .the.English writing and r~ad~ng~ Petitioner is a Mexican Nationalit,y.and don•t read . ....·· or speak ·the english lan.guage .. . . ;• ..

liow$:ver',,· .--- ·. :with' the·. assistance of ariother·,··fell.ow"'trimate Petitioner . ,. '

·. flle'd ' et ·.second State Writ of Habeas Co.rpus on January of 2014

presenting new claims he could have had no knowledge of when he .

filed his first Application. Because he didn't learn of the claims or other related cause nubers that were·used and enter-- twined with his murder conviction such as ea_se number 606078 l. ~ Sta~es alias related ~o 714137 his life sent~nce conviction,

or · ho~, 'his ·. ~rior DWI's ·of 1998 in case 47608.2 and 511430 were

.further entertwined with.· hi.a ~ ille9al .life sentence.~ ,·,

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Tbe·~respQndent filed a·l!econ

the App+ication should be denied. .' ·:·

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\ .• \ -~- • - ·. $!.'.· :~. ·', Ori Febr~ary .27, 2014. The texas C~urt of Criminal Appeals receieved and presented the Application to the Court. Writ Number · WR~,l,622~2 Trial Cour~ number 714137-B.

bn March. 12, 2014. The Texas Court of Criminal~~ppeals dismissed without writ.ten order this S\19sequent application for Writ of Habeas corpus, Tex. Code Crim. Proc. Art. ll.Oi,.Sec. 4(a.)-'ct> • . ;..- .·. The. t, ?eti tioner then filed a aecond Applicatyion 2254 Federal

Application in hope that th!s Court would Order ~~spondant to at least address his claims raised in State Court, or waive the claim~ so ~hat he could get a proper review of all claims. raised from feder,l District, not just review of t~me-barred issues which. limitted the Federal Courts jurisdiction due to respondants failure to aad.ress all claims of Constitutional vi·olation I thereby .- preserving: the claims by it • s failure to address~ denying Petit- '•·,.·.

ion~r ieview of all claims by the Federal District, on for which a COA could be Granted, not just on tirne-barrrad issued for which

the Federal jurisdiction was limitted to.

The United States Court dismissed Petitioners 2254 Application

with Prejudice as time barred oenied to issue COA, or Order

respondent to address the claims.

Petitionei then timely appealed to the United States Court

of Appeals Fifth Circuit. His Motion to Proceed In Forma Pauperis was Gr.antea. and Petitioner timely filed his Petition for Certif- icate of Appealability COA, in the Court of Appeals. And on Decem- ber 10, ·20~4. No. 14-20384 the Court Denied to c.o.A. And there-

f.ore Petitioner filed for a Writ of Certiorari to the United Statessupreme Court.

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The u.s. court ~,f Appeals for the Fifth Circuit has entered a d~:ecision that has sg. far departed from the accepted an<3 usual ! . I .. . ~

course of judicial proCeedings, or sanctioned such a de~rture by a lower

court as to call for an :exercise of this court's supervisory power, vherL the Court of I ~s for the 5th Circuit granted Respondent. s Motion tor summary - •' ·:,;·::1~\;:;:_\:;·.'·" . . ··f<"")··

Ju~~~~/or denied to. issue Petitioner's request fo.r· Certifi~te of Appealibility ... after. , Petitioner . preSented '.·· the court(s) with th~ following issw~r .

/ for rel~ef • ;: . · •< -.., .~ . ·· ,. t.:'; I,

·AND ~~.,into one factual:·~ legal ; >~:'- argument for ·this COUrt's convience.

. PetitiOn~ a.Sserts that his State 'l'rlal Counsel's actions fell below an

objectiVEn!~~d , .I . ' ·.:f:.I ·t: :-_- '- . Of .~leness ~ petitioner ~fered ~j\id~ee ' ' ~ .. _ , as a -. .r· :._ -z ..

<',"(A): , :Peti'~eJ:-.•s. · defense was !:" •· •. ·if::r~~··.;; ; "_' • • '> " " ; • • " •' . ineffictive and aid the prosection, Defense ·

eounsel·;:~rce petit~oner • • - to pl~d gullty' by mtsleadl~ informaticn·,that ( ,i~. o~ .... • f • r <',•

~~d the. j~ge would give him a small Rntenc:e for a guilty plead .Snd waiver of Trial by jurY. (B) · Petitioner received· ineffective assistance of Appellate COunsel .. COunsel was assisting the government filing appe~l. in alias mimed caused ntll'llber for assistiilg ~ goverl'lm'imt · in affirming an illegal·· Life 'Sentence of the Judge

in ca~ 1714137. Appeal COunsel further failed to provide petitioner with notice or opJ.nions of the court's affirming his alleged conviction.

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(C) OUtrageous Government Misconduct. '!'he government get petitioner to plead '·)

guilty to wild charged indictment of a prosecutor in 1714137, sentencing him

to Life, allegely granting appeal in 1714137, and carrying the appeal through

the court system in alias state cause number 806079 with appeal counsel

misleading petitioner with cause of action to deprive him to challenge the judgeS life sentence affirmed in 1714137.

(D) PrOsecutor MiscOnduct and Abuse of Authority. Prosecutor failea to protect petiti~r fxom a WI'CI'Jl9full . conviction and illegal life sentence of the judqe.

(E)· Abuse of Di~tion by the ''trial Judge. 'l'he trial judge abuse his i·

discretion excepting applicant's guilty plead in violation of Rule 11. not properly -admonishifl9 petitioner. And• ' when he read an illegal life sentence ' I

1n 1714137 -by__ jUdge for affirming 'an - illegal conviction adopt., am carried.

into state. alias 1806078 it would b9 affirmed in throt:lth the courts, to - mislead petitioner with the cauSe of action. - Petitioner further asserts that the lover COurts erred in granting

. respondant's Motion for SUmary Judgment where petitioner clearly presented a ,. .,.

- genu~ne. _isSue of material facts- as to the ineffectlveness of the trial counsel

and erred by failing to grant issue petitioner's reQuest for _ · c~o~_&. wtum petiti~ cl~rly met the requirement for appellate review pursuant to·~

~ U•S• C• .2 "tc-A ( C) ·(2) • irt I) 1 .i 1 r 1 'o, -. see.Dvt"d ~~tJ·.AJ,'e.c;l..

-In ruling on a Motion for SUmmary Judgment, the lower CDurts vie~ the 0 evidence through the prism of the substantive evidentfary burden .. 0 A1!IIJIRSlll

V. LIB'BRft LOBBI', 111!., 471 U.S. 242, 254 (1986). Under the AEOPA, the prism

of the substantive evidentiary burden differs depending upon whether the

issue is one of law, fact of both. See, !lRtNDBD 97 F. 3d. at 767-68.

7. .,. --~---: ·-· '.)

' ( A· state court determination of questions of law. and. mixed questions of ~- ~ . ~ . !

and fact iS reviewed under 28 u.s.c. 2254 (d) (1) arid receives deferenee unless it •was contray to, or involved. an unreasonable. application of clearly

. established .Federal law as determined by the u.s. SUpr:ememe Court. fJIIr.L v• . Jal';lS(If, 210 F. 3d. 481, 485 (5th. Cir, 2000). A State COUrt decJsion is , fr'

•contrary •to" ·SUpreme COurt precedent if (1) the state .court's conclusi~ is

•oppo13,}~~:: to that reached by the SUpreme court on a- question of_,1~v• or (2) . . ' ' ...,,.

the .tate court confronts facts that are materially indistiJ19Ulshable from a

relevant: SUpreme ·eourt precedent and arrives at opposite resq~t. 1ftl.I.IMB v. 'l'A'!t.OR,~::i20 s. Ct. 1495 (2000). A state eourt unreasonable applies SUpreme

court ~t if: (1) it unreasonable applies the correct; legal rule to the . . facts . of a particular . case of (2) it unre&sonably . exterids. ·a legaf. .. principle from suPr-eme COur.t .,prece:dent . to a new context ·were ·it should not apply or:. ·~r~ly re~ to extend that principle to a new_ ~text' wh~ "lt _ should : ''"'...:-- ... "!' ~

. -. t

In decldirig the lover court consider whether the ·application' was

"objectively unJ:.easonab1e.• Id at 1495, I¥H.U V. J'C&ECN 215 F. 3d. 504, 5&8 r ''• - ' . . . (5th. Cir. ·. 2000). Questions of facts found by the state court are "presumed . to .

be c:o_rrect and reci ves deference unless it was based on an unreasOnable -; . determination ·:·· of the facts in light of the evidence presented in the ~tate coU;t proceeding." BILL 210 F. 3d. at 485, quoting 28 u.s.c. 2254 (d) (2).

iibile as a general principle, Rule 56 of the Federal Rules of Civil

Procedurs, relating to summary judgment, applies -with equial force in the

context of habeas corpus cases. cr..ARK v~ JO'INSOR.- 202 F. 3d. 760, 764 (5th. Cir. ;· 2000). 'fhe rule applies only to the extent -that it does not conflict vith the

... : ~; ~ ha~ rules. Section 2254 (e) (1) which mandates that findings of facts made

a. by a state court are presumed to be correct, overrides the ordinary rule tbat,

in a suimlary. judgment proceeding all disputed facts must be coilstru!!d in I ' \ ;

'the light at favorable to. the nonmoving party: unless the petitioner can rebut the presumption of correctness by clear and co~vfcing evidence· as to·~the .

state court's findings of fact, those findings must be accepted as correct. · SM1ft v. 'oeo.mt& 311 F. 3d. 661, 668 (5th. Cir. 2002)~ • ~-C'· ·.• \ In regards to obtaining a Oertifieate of Appealibility, such qeruires a ·..· ,.

Additionally c;!q}lbts·-regarding~'~ ptopriety.:of:~,i:SSueirig~,a ·c~o~i·:sho~d be >resolved in ·f~Vor -- ot the pet·itioner. ·. . - . ' (')GlllN . V. ~~ . 297 F~ .3d. · 249, 355 (5th. Cir. 2002). ·

Pet:i'tione~ '·. asserts that; ~e state habeas. -~·· . . . .. • court 'a application . . .. . of " ·sruCittAND' .

· v. WASB&itJN, 466 u.s. 668 (~984·)_ is a.Ji unreasenable application of clearly

established SUpreme Court -p~edent where the state court correctly it;entified ·the goveming 1egcll .rule but applied it umeasonable to the facts of petitioner's

case, therefore summary'· judgment should had .~en granted a.rtfl/or a c.o~A· should ~ bE;en .i~ f~ the folloving reaso,1(s):.

9. Petitioner~s Trial counsel ~as deficient wh~n he failed to

file a':Pmotion to dismiss a Prosecutor • s wildly charged Indictment.

And told_}~Pplicant that if he just plead guilty before the judge to the. ,I!id.ictment of the Prosecutor the judge woul~ give. him a •. ' ,r: ' .. .~ :· ';;'

'small s.entence for a guilty plead. The Tria1 J~udge sentenced

Petitioner to a Life s~ntence, of the Prosecutors charged Indic- ·-.-·i : tment. Petitioner's Trial coun~els actions was a strategy to

aid the Prosecut·ion with a Illegal Murder conviction, of a Prose-

cutor's'wildly ch~rged Indictment. The fact ~as .~hat after defense

counsel got Peti.tioner to plead guilty t.o the wildly charged ilia

dictme~t of the Prosecutor the Trial judge was able to read a N~ll

and Voi'd Life sentence against Petitioner in 714i37, and alleged ' . . - to have given Petitioner a Appeal in 714137 of .. the Prosecutors

wildly.charged ' . Indictment. The fact was that after the Trial judge . . reads·the Null ·and Void Life sentence . - in 714137, - . . based on Petiti- ~

.. oner guilty pl~ad he.entered by misl~ading information, and sets

Petitioner to waive App~al~ when pleading guilty. Petitioners

counsel was aiding the Prosecution the Prosection was then able

to get an actual Indictment in an State alias numbered cause such

as 806078, a~ if a a~tual trial by jury was had in the case. And

the case number that would be carried through the court system

to affirm an illegal conviction. of M~rder and Lif~ sentence

of a Trial Judge. Trial counsel action aided the State, the

Prosecution, and deprived Petitioner of a fair Trial an~ Sent-

encin~ Trial of the True-bill Indictment, after Petitioner plead

guilty excepting responsibility. However, he is sentenced on the

Prosecutors wildly charged indictment by the trial judge to a life

·sentence in 714137, and held in a Texas Prison foi: any period o6

time the State wishes. Counsels action further aid~d the State in lagetting a ·.lif.e sentence affirmed on Petitioner, counsel was aware that Petitioner bad prior PWI convict.ions of 1988 in cau.se number 476082 and 511430 that Petitioner bad ~lead suiltt in, and. tbat tb~ffe: t~o 'cau.ae nu~Aber& would be cc:u::ried an4;-ado~ted into his alleged murder indictment of the proaecutor in 7141371 for iJUrpo·ses of alJ_owing the Judge to impose a sentence of life in .714137. aad then on '.- ~ -' record showing ." . the State dropped the tvoiOWI ·:, ·.. . cause numbers .

instead of shoving that Null and Void life sentence of the judge ~- :': . ;:.. . .. :::;:'.~ .}; ·.

in 71.4137 . of a prosecutor indictment was the c:~~e. dropped after· :·· ... . ;·:·. Petitioner plead guilty. 'frial counsels actfbn. in· this case c:lea.;-1,:1 aicted the prosecution. And allRed the State to af.firm . a illegal conviction in 714137 life sentrence, and jilislead Petitioner . •.··.·

with the ac.tual cause. of action a app-eal was being. taken in. Counsel :act-ion clearly have caused harm to Pet~tioner. Aad such claims .. raised in hia State and Federal Applicant, the lower '·

courts have failed to even· address· the claims. Depriving Petitioner to fairly challenge his illegal conviction in violation of his rights through Ineffective assistance of counsel, Ineffective assistance- of appeal coe.:msel, Abuse of Discretion of the Trial, ·:)·;-~~ · .. Judge ·Prosecutor tUsconduct. And the outrageous Misconduct of the S~ate and Federal Govetnment, to deprive one of his rights, Petitioner would have to assume that because he i.s a Mexican Nat- ionality, the laws of the State don't apply to him because he is' not a u.s. Citizen of the United States. And for. this reason Petitioner Petitions this Court for a review of the lower courts opinion denying relief Petitioner has demonstrated an entitlement to, of his illegal life sentence in 714137.

;·\

11. .··-;{

~ ..:.··

No Trial stiategy can exist whren a defense counsel ~ids the

State in it•.s J?rosecution. See·Boherty V'"! State 7781 ~.W.2d~ 439

T~x. App. Rouston [l•t. Dist.] 1989. ·

The P~titioner had flkther demostra.ted how his appointed appeal

counsel further aided the State, where appeal counsel was filing

a Appeal in. ,the State· Alias number cause, and fa~led to -inform

Petitioner when · ~~~- Courts had affrimed the cil:se ., . and made its ···.·

rulibngs ~~iling to. provided Petitioner with~&urts opinions,

of th~- cause number shd was filing appeal in. Appeal courise~

further· provided affidavit, stating she had'fnfact failed to _·,;-

infora:Petitioner his case was afftimed, and his~riR Refus~d.

In Coriclusion the lower court can only review the States Con- ";-':

elusion that Petitioners counsel provided effective a~sis~ance,

··':not··· ·its· - reaso'ning '···in : determioning wheth.~r: i't' is contrary to . ·' .~ -. -~ .· or "in.volved · in . a Mi.s'appl'ica.tion of clearly estapl£sh~d Feder~! 0, Law •.~leal. V. Puckett, 286 F.3d. 230 246·~ (5th Cir. 2002). In the "· contex~ of claims f or · 1ne ff ect1ve · assistance ·6f · counsel, that

means ·a Federal · court m'ust presume, v · f th e en 1 · . e State court renders its· , decisicn without ~~inion, The court ap~lied the weel known STRICKLAND analysis. Catalan V. Cockrell, 315 F.2d. 491, 493 (5th Cir. 2002).

In this case, the State Habeas Court did not hold an evidentary ~ .~

nearing pursuant to V.A.C.C.P. Art. 11.07 '(3)(d:)., However, they

~pplied, .STRICKLAND to its factual findings and have conc~uded

,Petitioners counsel was not Constitutionally ineffective, never

o~~ering counsel to .address the claims .raised. Thus, the question

is whether the Stat~ court's application of STRICKLAND ij contrary

'~ .12l. to, or ir1volved ·a'" misapplicat-ion of clearl-y established Federal

taw. Under ~TRIC~LAND, to ~rove an ~ttorney's asaistan~e lneffec~

tive, Petitioner must show tl) that counsel's performance was

defici•nt; ·and (2) The deficient performance. prejudiced the - - defense· ST-RICKLAND, 466 U.S. 668, 686-:-692 (1984) ·~

Due to r~asons, facts that Petitioner has s'hownr\hat his counsels

actions and/or inactions were unreasonabl::r defici~nt, a-nd that his

counsel's :action_··. i·n- coercing Petitioner to plea·d .guilty by mis-

leading in~o.rmiition,' that for his guilty plead-~:th~ Judge would ,. _:;., .-: ',-·

give him a small :se_rit~ence, -were action for aiding _the. Prose~ution

with it's ~.conviction, whereas after&: ptietition.er plead guilty

the Tr:)\1-l.·;gudge could read a Null and Void Life se~i-tence, . actuaily 1\ disposing of the prosecutors wildly charged indictmenL And for

these fac~i the ~rial judge was influenced in re~dering a guilty

verdict _'.;. >· ·excepting . Petitioner.s guilty plead to .·a-" Wil-dly c·harg·e~- indictment of the Prosecutors by this deficient conduct he would

be pertJcipating -~ .. l . • in· rendering a guiltt verdict for-obtaining

a conviction for the. State by all.counsels deficient conduct,

the St~tes Habeas Court's application of STRICKLAND is an unrea~

sonable application of clearly established Supreme Court preced~nt,

where the State Court correctly identified the governing legal

rule but applied it unreasonable to the facts of Petitioners

case. The lowerr courts have granted respondant summary Judgment

pursuant to the AEDPA one year time-limitation, never ordering

respondant to even address the claims raised. - ;c. .court • s erred by· gran.ting~-.-Respondant' . ': :· . ·• . •·. . . . . s ~;

mo~lo-~' · for ~u~~~;y_ . 'judgment in his. first -applid~'tion stampe'd

fi~:e'd d~t,:e ;.O,ct·t,ber 22, 2002. aci vil Action H-02--2,f~-2-~" A'nd ··has. /;.. _:.. ·.:-~

,_ .. ·:..:·

.-":·where he ~learl~ · d~~6ns~rated an entitlemellt . ' ··t6. relief of. ,h·is·.- . -· ~ . ~ '·

ilieg~l .. . -s~nt~enc~, in 'iife hts s·econd state and feder:~lapplicat'iqn~, .. .. . ..'-: .

·his · wr:i.t .··,·v·_~-~--- .

Certiorari : .. .

to ·review the Judgm~·fli~ and opinfbns ·of tht{:·~,f.F.i:s-:~-;.~our,t, ·of. Appeals for the Fifth Circuit in this caEfe. .. .:..... -~. :

QUESTIONS THREE, FOUR AND FIVE -~

P~J;i~t;~iW~~:, ::;:··_, ~ ·.: ... ·-~ ' .will _·incorporate his arguement:e··a:ll_d·_ autho_rities . .;~ . . . . .

for· qu~stio~s three, four and five into one -~:~<::t·u~l- arid legal .. ,.,~·- _.. ·.·

arguement f~~~this court's convenience • . ·' ~-- .. :: . •··. . . ·'., _,. .. ;;-· •• ~ •••. :· <' ~- ·;,,;,. .: --~ ... _._... .::~;:~~- .: • • ~

The ~:~i'#~qriE>r :~~'tS'~ tnat iii !;his casQused, . it •.s . ';;\~~--~:_. :dis'c·retion when excepting Petitioners gui:lty pl~ad.·f·or '. :<\:~ ·-~····. ' .·. ·,. '. ~ .. . ~.

a wil:~-i:y:f-charged indictm~nt of the prosecuto~; ._·for which· was ../~f~f- ~;·._·· .· .' . ·~ ~ ~ ·, .· ol:)tained~,: ,.b.y ·.' misle~dlng. information . of defensEf counsel, a~d (ll-. viol.a~~~~~>:: :of ,.federa.l Rule 11. And Misconduct of'.:;the prosecuto~l >-..- . where :'·~>p~t~it.ioner has clearly demonstrated an: entitlemerit "':'-'····· .. ·to

filed ap~lication. An~ that the lower -~- ..

courtfi'. ·_. ·Jl'~v~,.: er.red·:·-'.fin . -~ . granting respondants Mh~ion of october 22, 2002 :fn.it'''a··.M~in,~randum· and Order in·civil ~~-'~:~on ·•: H-02-2162:.

The P.~~t..~~i~ner -h~s clearly presented genuine i~sues of material · facts--'~~4'.if_~ ·his second Hal?~~s· Corpus State .and FE§lderal_ as ·to t.he I,,;

Trial :court ''s abus.e· of.:.' 'discretion and has err.ed by failing to

14.. ~·· : '· ·':· ,. i' '(. now issue Petitioner~ request for c.o.A. ~h~n he clearly met the tequir~ments for Ap~~llant Review pursuani to 28 u.s.c. 2253( c) ( 2) •

Within Petitioner's State and Federal Writ of Habeas Corpus,

Petitioner presented the above stated points of ~rrors, However, "the u.s. District Court concluded that issues w~~e procedurally . .· .·.. .. .

'· · .·_·.barred due t.o such ·issues not being raised on Direct Appeal,

and that the claims Pf.:..esen_ted are barr~d 9-Y the AEDPA one year :J ,.. .-,~·

time limitation.

When- . a State Court denies a Petitioner's Claim . . based on an . ;._.

independant and adequate State Procedural Rul~'j;~~ Federal Habeas ( Review of _the claim is barred unless the Petitioner can demon-

strat~ {1) cause for default and prejudice as a result of the alleged violation · 'o·f :Fedt:ral Law or ( 2) . a result~ng fundamental

amiscarriage· of. Justice. Coleman V~ Thompson, 501 U.S. 722, ··---:_: __ .

750-51.- ( 1991).

In order to establish'cause, a Petitioner must show some object- ive factor EXTERNAL TO THE DEFENSE which impeded Petitioner's

ability to comply with a State procedural Rule. Interference

by officials or the unavailability of a factual or legal basis

for a ·claim may constitli.te cause~ Additionally, Ineffective

Assistance of Counsel may also constitute cause. Murray v. Carrier

477 u.s. 478 (1986).

15. .' .· ;..;,,_.__ : ·.;; . . ·,- -~

The ·Petitioner ha'd cl.early .. .···_ . dem6nstra.ted ir{ 1,his applicatio'n .\

that he was . -~bei~~~J' .. ini"sl~ad:_':with··' .. . . . . ·'· ··. . the C~·use . of. action I , n1tentiona11y .... ~ -~ ~ • >

~h~ough. the misc6rid~d~·~f his own· defense ¢ounsel, by the pros~- • 't_ i ·i ;. ..

cutors . .. wiiafy .. ch.atged in;d~.r":ctnn!nt. . -!' A~1d .the Judge abuse of discret~ ·. -~ .. ·,: ..... . ~ . l?etiti~H'fers guilty. plead in .violatioh.' '. ion . exc'epting . J. . . d,f; · Rul.e. ....._... ;,· :.!; : l • . 11 for the;,.'Murder Indictni,~nt \1hen·· the f·act was ti!:e. pei"1ding in~~Uc;- ~ .· :j •!

.,·_,.-~'.tments vv,er:e Petitioner¥ j!rior DtH•·.s of· 1988• T\VO DWI'is·that·

·<~-i:\.t~re a~i~.ed t.o ·have/ been a.bdanded by the State after getting ·... ·. . Petitioner to plead g~~~ty to prosecutors wildly. 9harged indict- . ~

.in· 714137, a~£~ally ·.~.

ment, abandoning 714137 aft~r ·getting P~t~ \I ' ' '' ,,, I 0 ! ~

~, ..:: '' reading . . a Null '' ... and vJl~ .... ' . ~ife sentence -::·:~

Trial ·Judge granta a~·. alleged appeal

which 'was au'tomatic, and for purposes

;, of affirming:\~_,a P.1u_r~~r conviction in "806078":, .the Government ;,., -~J.<"'~~~~~-'...·...~.. ';0~~· •• • t.~·. .......~ ~ j ': .. J .>-~··-· ...... ,~·~· ... ~, ·~ .. woul'::.f' i.!1isfead ,. ·Pe'tit.iipner · 1:Hth the cause of acti'bt1. a a!).!?eal 'vJas. · . .. ~~-. • t ~ ~ .

~~ ··-··-··--. ·:· ta:ken in and hisr c!o,nviction would be afficm~d in, R!llv~ersed · .i·:;! . : ~ . ·;.'- .1: : i

and remanded in. : for; ~ • 'J a ·new sentencing trial Petitioner wou~d

of ha¢1 a 'right to al.fter dir-ect appeal, had he not been mislead '.:·· .. with ttte_,cause of act.i~n. : ; ~~

... :.

·: .·· ... · Petitioners subseq~ent ~pplication clearly demonstrated an .. ,: . enti tlernent. t.o relief, and ~ n~w· sentencing ~rial. Whereas of t

today Petit i.on.er ··is.. -~·at ill se:cving a ~entence, a questionable _·; I · sentence of . a act,ua.J, conviction under ·the trial judges NULL ·• '1,·

and VO~P Life sentence;in 714137, that his conviciion was affirmed . l \

' ' in. And Petitioner h~~·be~n mislead with. And from fairly chai-

lenging·; ,.')

.. - .~ ' .

16. '·.· ·~,· ~1.

..; ·'. - . ·, ·:

: ~. •.

It is uriqri~jfionable that jUrist would'£ind it debatable that

··.~'the Trial Court I 5 have e.t:r;ed in failing to order a new. sent'encing

t~:ial in this case,-·· iilid that based on his second application ·

.-Pet. i tioner has in fact. , 'd'~:rt

Due to ~11 facts of en#itlement to relief Petitioner ha~ shown

in his ap~Iication th~ Lower Stat~ and Fede~al Habeas Court

have all erred and ha/\/·e allowed the State Trid.l ·Court to abuse

.it's discreti6ri, with abts of ~isconduct, A miscarriage of justice fot obtaining an ili~~al Life sentence conviction, failing to . ' to Order a New seritencing. ··trial in~his·case~ An entitlement

~etitioner has demon~tra~ed~ J ,. ·'.

Petitioners State ana·: Federal Application clearly demonstrc.ted

Constitutional errors, ~his Petition for Ceitificate of AppeaL-

~bilitt COA clearly d~monstrated he was entitled to grantiny

bf a COA and the~efor~, all the lower state and federal courts .. .. ;

have in this case. And Petitioner prays that this court

reverse, and remand his c~se on this his Writ of Certiorari. '

',-:~

•.r' ~ ,.. . . .....: .~ ....,.., -- ·- ·---:--

For the above Stated reasons, Petitioner asserts that the SSta.te Court's Application of etONGBV. CALll?ORNIA 547 u.s. 721

(1998). is an unreasonable application of clearly established .J.· Supreme Court precedent where the State Court correctly identified

the governing legal Rule, but applied it unr~~sonable to the

facts of Petitioners case •. Therefore, the lower courts erred

by gr-anting summary judgment in Petitioners first application ' .. -·- ' filed ·in 2002, and then erred in dismissing his applic£tion in 2014 which clearly dewonstrated an entitlement to relief, and or

failing to issue Petitioners request for c.o.A. "thus, Petitioner

pra1s that this Ronoraole Court Grant his Writ of Certiorari

to reviuw the Judgemnts and O~inions of the u.s. Court of Appeal~

for th~ Fifth Circuit in this case.

COMCLGSlON -For the reasons set forth above a 'writ of J:"~rtiorari should issue to review the Judgment and Opinions of the u.s. Court

of Appeals for the Fifth Circuit in this ma~ter.

Executed on this ~0±1 day of r~ ~. 2015.

Samual Medrano Dia~ i7636221 connallf; Unit 899 F.i-4. 632 Kenedy, Texas 78119

.~·-.

18. I Sa~uel Medrano Diaz, do declare under.tbe penalty of Perjury

pursuant to 26 u.s.c. 1746, that the contents stated within this

Writ of Certiorari is True and Correct to the pest of my :r..now- :ledge.

Execut_ed on this .lo day of · J7'e-p, 2015.

s I M 'Dto.--z_ SaKuel Medrano Diaz 763621

CER~IPICAT& OP SBRVICE

I Samuel i-ledrano ,Oiaz, Do certif)' that a 'l'rue and Correct c·opy

of thi$ Writ of .Certiorari and Motion to Proceed ~n Forma Pauperia ~ ·.....

was served by u.s. Mailt Postage Prepaid to Respondant address to th~ Attorney General for the State of Teaxs P.o. Box 12548,

Austin, Texas 78711-2548 on 2015. -..:··.·

&eunt!l:el il'ledrano Diaz /63621 Connally Oni( fJ99 P.M. 632 · ·•: Kenedy, ~axas 78119

··,

19. ·~· .

APPENDIX A.

U.S. COURT OF APPEALS DENIEL TO ISSUE C.O.A. Case: 14-20384 Document: 00512865129 Page: 1 Date Filed: 12/10/2014

'_}

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14-20384 USDC No. 4:14-CV-1388

SAMUEL MEDRANO DIAZ,

Petitioner-Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee

Appeal from the United States District Court for the Southern District of Texas, Houston

ORDER: Samuel Medrano Diaz, Texas prisoner # 763621, seeks a certificate of appealability (COA) to appeal the district court's dismissal of his 28 U.S.C. § 2254 application challenging his murder conviction, which resulted in a life sentence. To obtain a COA, Medra.no Dia7. must makP. "a substantial showjng of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The district court determined that Medrano Diaz's § 2254 application was untimely. However, Medrano Diaz has filed a prior § 2254 application, and his instant application raises claims that were or could have been raised in his first § 2254 application. See In re Flowers, 595 F.3d 204, 205 (5th Cir. 2009); 28 U.S.C. § 2244(b). He has failed to show that the issues presented deserve

\ .,

Case: 14-20384 Document: 00512865129 Page: 2 Date Filed: 12/10/2014

No: 14-20384

encouragement to proceed further, and he does not meet the requirements for a COA. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000). Consequently, his motion for a COA is DENIED.

Is/Edith H. Jones EDITH H. JONES UNITED STATES CIRCUIT JUDGE

A True Copy . Certified order issued Dec 10, 2014

d~ Clerk, w. l1~c.... tP.s~ Court of Jtf>peals, Fifth Circuit

2 API?ENDIX 8

US illORUT NOTICE CONPLAINT FILED Ji.ND ORDER GRAN'l'fNG

FORMA PAUPERIS TO PROCEED

~ .l'.' ·IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

SAMUEL MEDRANO DIAZ , § TDCJ No. 763621, § Petitioner, § V. § CIVIL ACTION NO. H-14-1388 § WILLIAM STEPHENS, § § Respondent .. §

ORDER

The Application to Proceed In Forma Pauperis on Appeal [Docket Entry No .

. 8] is GRANTED.

SIGNED at Houston, Texas, on August ( '1, 2014.

DAVID lllTTNER UNITED STATES DISTRICT JUDGE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

NOTICE THAT YOUR COMPLAINT HAS BEEN FILED

It was filed on May 16, 2014

TheJstyle of the case is

Samuel MedranoDiaz v. William Stephens

The case number is 4:14-cv-01388

The District Judge assigned to your case is Judge David Hittner

The nature of the claim is Habeas Corpus NOS: 530

Please write or type the civil action number on the front of all letters and documents. Please address all mail to:

United States District Clerk's Office P. 0. Box 61010 Houston, Texas 77208-1010

Date: May 19, 2014 David J. Bradley, Clerk

B A PPSNDIX (:.

U~S. DISTRICT COURTS DENIAL OF C.O.A. FINAL JUDGMENT

i ., IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS I

SAMUEL MEDRANO DIAZ, § TDCJNo. 763621, § Petitioner, § § v. § CIVIL ACTION 14-CV-1388 § WILLIAM STEPHENS, § Respondent. · § . '-:'~-'.··~:;:;,,.:~l~.~~:~:.~{-~~+

MEMORANDUM ON DISMISSAL

Petitioner brings this habeas corpus application under:28 U.S.C. § 2254. He

is incarcerated in the Texas Department of Criminal Ju~ti.9.e. . ·,_,.., . (•',. F()r the reasons below, . .-·::.:.:;y,. ·-..·..... .. .··- ........ ·..-.

this Court DISMISSES the application as time barred under 2~LU.S.C. § 2244(d).

I. THE STATUTE OF LIMITATIONS . ... "·:,f. : .. · ~;,. ~~

The Antiterrorism and Effective Death Penalty Act ol·1.9;§~:(AEDPA) . . ... amended ~. '; ·.. ' . . -;·.: .. I

the 1habeas corpus, statutes. The AEDP A states in part: ;-·;· .-''

i\,\

(d)(l) A 1-year period of limitation shall apply to a ... writ of habeas corpus , by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-- (A) the date on which the judgment became final by the conclusion of direct review ()r the expiration o£th~ time for;seek1n:g such review; •J •- •

(2) The time during which a properly filed _:·application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d) (West 1996). - ---------------- ---~--~

! i(. . ~!

II. PETITIONER'S PLEADINGS

Petitioner submits the following information in his Original Petition. The state

court convicted him on September 12; 1996. He appealed his conviction. The Texas

Fourteenth Court of Appeals issued an opinion deciding Petitioner's appeal on June

25, 1998. Petitioner states he filed a petition for discretionary review (PDR). The

Texas Court of Criminal Appeals refused the PDR on September 23, 1998.

Petitioner states he filed two petitions under article 11.07 of the Texas Code

of Criminal Procedure. He filed his first state petition on February 4, 2002. He states

he does not know the date on which the Texas Court of Criminal Appeals issued its

final decision in his first state writ. He also says he filed a second writ applic~tion

which the Court of Criminal Appeals received on February 27, 2014. See .Original

Petition, p. 4, ~ 11. He states that the Texas Court of Criminal Appeals issued its

final decision in his second state application on March 12, 2014.

The Supreme Court has instructed that before sua sponte dismissing a habeas

corpus under the statute of limitations, the district court should provide notice and an

opportunity to allow a party to present its position on the limitations issue. Day v.

McDonough, 547 U.S. 198 (2006). In the form petition submitted by Petitioner, he

was provided the opportunity to address the statute of limitations by responding to

paragraph number twenty-six on the timeliness of his petition. See Original Petition,

/ I . ,: i.

p. 9. [Docket Entry No. 1, ~ 26]. The text of the statute of limitations under section

2244(d) is set forth in a footnote in the form petition. !d., p. 9, ~ 26, fn. 1. In

paragraph twenty-six of the petition used by Petitioner, he was instructed as follows:

If your judgment of conviction, parole revocation or disciplinary proceeding became final over one year ago, you must explain why the one-year statute oflimitations contained in 28 U.S.C. § 2244( d) does not bar your petition.

!d., p. 9, ~ 26. Petitioner submitted an explanation in response to the paragraph '

twenty-six, as follows.

The [statute of] limitations should not apply. [Petitioner] has ... demonstrated his conviction ... is not final. [H]e has been mislead ... by the state, ... preventing him from ... challenging ... [his] sentence. He ... demonstrated his ... sentence is null and void. [He] was entitled to further proceedings, [including] a new senten9ing trial. "Thereby making" his life sentence a [non-final] sentence and conviction .... Respondent's failure to address all of his claims ... preserves his claims for review by the state court. Petitioner's first application was dismissed under an AEDPA limitation. This dismissal is "an affirmative defense, of conviction." Petitioner needs a response to all claims for a proper review of all claims .....

!d. Petitioner incorrectly maintains the statute of limitations does not apply here. In

any event, Petitioner's garbled response on limitations does not show that this habeas

petition is timely under the statute of limitations, as discussed below.

III. ANALYSIS l

Petitioner's conviction became final on December 22, 1998, when the time to

3 (, \

petition for certiorari in the Supreme Court expired, ninety days after the Court .of

Criminal Appeals denied Petitioner's PDR. SUP.CT.R. 13.1 (West 1995). There is

no showing that subsections (B), (C), and (D) of§ 2244(d)(1) apply to his claims. ~~ The limitation period expired a year later, on December 22, 1999, absent tolling. ·~~

Petitioner filed his first state writ application on February 4, 2002, which is

more than two years after the limitation period ended on December 22, 1999.

Therefore, the p!endency of his "state habeas application did not toll the limitation

s12vf period under 28 U.S.C. § 2244(d)(2) because he did not file it until after the period ~.:·c· I

of limitation had expired." Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000)

(emphasis in original). Petitioner's second state writ application also did not toll the

limitation period because he filed it more than a decade after the running of the

limitation period. Petitioner is not entitled to statutory tolling under section

2244(d)(2). The statute of limitations expired on December 22, 1999, absent

equitable tolling. ' Petitioner has not shown that he is entitled to equitable tolling. "The petitioner

bears the burden of proof concerning equitable tolling, and must show rare and

exceptional circumstances warranting application of the doctrine." Alexander v.

Cockrell, 294 F.3d 626, 629 (5th Cir. 2002). Furthermore, the Court should only

apply equitable tolling if the applicant diligently pursues section 2254 relief. Scott

J v. Johnson, 227 F.3d 260, 262 (5th Cir. 2000).

Petitioner constructively filed this federal writ application on May 14, 2014.

He filed this application more than fourteen years after the statute of limitations

expired in 1999. Petitioner's federal habeas corpus application is time barred.

IV. CONCLUSION . {) { . ~ ·r:;l'\ b--~7 28 U.S.C. § 2243 authorizes the federal courts to sua sponte dismiss habeas Hr~/ '{ . petitions where it plainly appears that the petitioner is not entitled to relief.

Accordingly, it is ORDERED that this action be DISMISSED with prejudice as time

barred under 28 U.S.C. § 2244(d).

This Court finds that Petitioner has not made a substantial showing that

reasonable jurists would find it debatable whether the district court was correct in its

procedural ruling. Beasley v. Johnson, 242 F.3d 248,263 (5th Cir.). This Court finds

that a certificate of appealability should not issue.

SIGNED at Houston, Texas, on ~ h r '2014.

DA ID HITTNER l UNITED STATES DISTRICT JUDGE ) Ii,_ ) •._! I.

-- l

Samuel Medrano Diaz 763621 899 FM 632 Connally Unit Kenedy Texas 78119

Supreme court of The Feb. 19, 2015 United States - ,

Office of The Clerk washington DC 20543-0001

Dear Clerk; Enclosed you ypl find my Motion For Leave To Proceed Informa Pauperis in this. Court. And . my Petition for A writ of Certiorari, aiong with the ' ~

. Lower dotirts _, . . orde~ .· .. and and judgments Appendix A thru D. Please· file ~ ~ . all these d9~umen~s .. ~. ~ ' ~d . bring to the attension of the Court. . Petitioner is requesting the ~ gr;anting of a Writ of certiorari to review. the t.ower Courts .:. ' . deniel ;to iey3u~ ~~,itioner ~ certif~cate of Appeala~ility for his illiigal conviction in violation <;>f his p .a Coftsti_tu1;ional rights. You will find one originai_ and one copy of all above. c r ..:z .M·. ~~- SJ I 0- 'Z..,;;c . t . .J.· \ .:-:-o• '·;, .. ,.. • .' ·;~,·:

S~el Medr~o Diaz ''763621

. '. NO. ------~~------

IN THE

SUPRE~~ COURT OF THE Ut~ITED STATES

> • ' •

. Samuel Medrano oiaz 1

PETITIONER

. JS ..

WILLIAM, 'STEPHENS, DIRECTOR'= .~ ' - RESPONDlliV'.r . ·--.. ·- ..

l"10TION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

The Petitioner· asks leave to file the attached Pet,li:ion for a vJ.dt of .:- ,-« ·' """

Certiorari l-Jithout prepayment of costs and to proce~ In Forma Pauperis • . . [ X] P~titioner has previously been granted leave to proceed in forma pauperis in the following cotirt(s): ......... ' ·, ' . ~

STATE SOUTHERN DISTRICT OF HOUSTON D~VISION . :~·.·.

[ ] Petitioner has not been granted leave to proceed in forma pauperis in

any othpr court. ' •.

Petitionee's Affidavit or declaration in support of this motion is attached hereto.,

. -\ "'.

.·'" .. ·. ~-: __, ...~.· . ::

APPIDAVIT OR DECLARATION IN. SUPPORT OP MOliOilLPOR LEAVE '1'0 PROCEED. IN FOOMA PAUPERIS

I samuel 811ddaaii0Diaz, am the Petitioner in the above entitled case. In support of my Motion to Proqeed in Forma Pauperis, I state that because of my poverty I am unable to pay the costs of this ·case or to give security therefore, and I believe I am entitled~ to redr:ess.

I_ ~m. the Petitioner in this case, Samuel. Medrano Diaz, Texas Prisoner !d. Number 763621. I have ·bee~ in the Texas Department of ·Criminal· Justice since my conviction. I do not work and earn money here in prison. The only money I recieve is from Family and Friend~, which is mailed to Texas Department ~riminal Justice Inmate Trust Fund. . And therefore, I cannot pay the full amount in one some to ·proceed in this court. And ask'that the Court order a pec.cent.age .deposited, fmora l"atpilfmabd Pl'teadsFund Account be withdrawp as deposited, from Family and Friends.

I ··have no .sn ~OUSe Or OWn any _prOf)erty Of _I)~Sieve aH:{ other .. '· income ·from any . q~_her sources. I have prov.id~d:·'tfiis cou;-t with a Six Monfrh pr_1_·n_ t d~~·_,· o f my Inmate Trust Fund De~5~;s.its.

I · underst~nd a false statement in answer 'fci any questio?s in this·· Affidavit ·.will subject me to penalties for Perjury. I declare (Cer~ify, Verify, or State) under pe~~lty· of perjury that the foregoing is true and correct (28 u.s.c~§i746).

SIGNED THIS THE 10 1-h DAY OF · _Fe,.~

,.·

S r- M, b i o.-'- tt oo 1-636').. I Si~nature of Plaintiff Id No. •.:,\ .. ".:' )~ ·.. . : . '·l ~

IN THE UNITED STATES DISTRICT COURT ·i FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

Samue};~edrano Diaz 763621 Plaintiff's Ii(lme and ID Number ~oh~~~~ Connally Unit RiHe~~~-~~~is 78119 · P~.ate of Confinement

CASE NO . ..,..-;-::::--:----:-::-:---:--:----:--:- "•' ·(Clerk will assign the number) v. ~-l •; .-~~ .'... WILLIA!\1 STEi?I:IID~S, DIRECTOR, TEXJ.:...S DEPAR'.rr1E£'i"T OF CRIMINAL . ,., ·· APPLICATION TO PROCEED JUSTICE COAA.ECTIONAL INSTI'rUl'IONAL DIVISION, I~ FORMA PAUPERIS

Defendant's (lame and. address

·I, .. samuel Medrano Diaz , declare, depose, and say I am the Plainti£f,in the above entitled case. In support of my motion to proceed without being required to prepay fees, costs, or give security therefor, I state because of my- poverty, I am unable to pay in advance the filing ~ee for said proceedings or to give security for the filing fee. I believe l am entitled to i:elief. . .

. . - -~-'"' ...· . ·I, further declare th~ responses which I have made to the questions and instructions below are true.

1. Have you received, within the last 12 months, any money from any of the following sources?

a. Business, profession or from self-employment? ¥es·-o NoB b. Rent payments, interest or dividends? Yes 0 No 0 c. .Pensions, annuities or life insurance payments? Yes 0 No~ ·d. Gifts or inheritances? Yes Ef Yes · No ···' e. Family or friends? No~ f. Any other sources? Yes 0 No

If yo~ answered YES to any of the questions above, describe each source of money and st~!~ . the amount received from each during the past 12 months. ·

/ w ~ hi., tube.-d £1>-"h -£A 1 y a,J ..£.~a~· 2. Do you own cash, or do you have money in a checking or savings account, including any funds in prison accounts? Yes OC No 0

If you answered YES to any of the questions above, state the total value of the items owned.

$ SCJ .1~c.~·e-7'Y-~v~r6· T~ar/

1 -A-ATCIFP (REV. 9/02) · .tL.' t • '"'

' " ; ,,./ . . ; . ... :· . . ·. .. ; . >·!i~:-~:' . . .· .. Do you ~wn real estate, stocks, bonds, note; automobiles, or othetvaluable property, excluding .-!._,,: . ordina_ry hous~hol~ furnishings and cloth~ng? . .. · l ;', "•\.• : ••. !·:; .•

.~ .. i ·.·Yes 0. No Kl · ..... ·

If you answered YE~ •. describe the property and state its approx~~ate value. . . '·~

r· . .

•'.,.. . I understand a false statement in answer to any question in this affidavit will subject me to penalties for ' perjury. I declare (certify, verify, or state) under penalty of perjury that the foregoing is true and correct (28 u.s.c. §1746).

Signed this the ~-() tl; dayof E~!J '20 _IS_.

S ~ M {. b i a.. L- ftOD?636~l signature of Plaintiff ID Number

YOU MUST ATTACH A CURRENT SIX (6) MONTH HISTORY OF YOUR INMATE TRUST ACCOUNT. YOU CAN ACQUIRE THE APPROPRIATE INMATE ACCOUNT CERTIFICATE FROM THE LAW LIBRARY AT YOUR PRISON UNIT.

2 -t:rATCIFP (REV. 9/02)