Loynachan, Samson

• Court: Court of Appeals of Texas
• Decided: September 8, 2015
• Docket: WR-83,851-01
• Status: Published

Opinion

CAUSE NO. ------ SAMSON LOVNACHAN, § COURT OF RELATOR v. § CRIMINAL LOUIS STURNS, 213TH DISTRICT COURT IN HIS OFFICIAL CAPACITY. § RESPONDENT RECEIVED IN APPEALS § COURT OF CRIMINAL APPEALS IN RE LOVNACHAN SEP 08 2015 MOTION FOR LEAVE OF COURT

TO THE HONORABLE COURT OF CRIMINAL APPEALS: Abel Acosta, Clerk Comes .now Samson Loynachan, Relator pro se in the above-styled and numbered cause

of action, and respectfully asks this Court for leave to file a writ of mandamus, and

for good cause shows that:

I.

Relator is trying to obtain, or be given access to his appellate record to file a

writ of habeas corpus under Texas Code of Criminal Procedure (TCCP) 11.Q7. Relator

has filed three motions (attachments 1-3) in the 213th District Court, which were

denied. Relator appealled.

Under cause no. 02-15~00135~CR, the 2nd Court of Appeals dismissed the appeal for

want of jurisdiction. RelaibdJr currently has a petition for discretionary review due

in this Court to review the dism~ssal on 25 September, 2015, under PD-0852-15. That

review is, of course, discretionary, and the relator has no other adequate remsdy at

law. See In re Bonilla, 424 SW3d 52B, 533 (Tex Crim App 2014)(Relator has no ade-

quate remedy at law because the information he seeks pertains to an unfiled, future

post-conviction applicati~n for a writ of habeas corpus.)

Relator filed a wtit of mandamus with the 2nd Court of Appeals, under ¢ause no.

02-15-00240-CV (attachment 4). In a two sentence opinion., the writ was denied on

30 July, 2015.

As ex~lained in this writ, the relator has a great need for, and a constitution-

ally based right to access these records. Without the records, relator cannot prop-

erly file an 11 .07, and consequently, if needed, a federal writ of habeas corpus.

A copy of the records has already been made for the benefit.of the relator, due to IN RE LOYNACHAN

MOTION FOR LEAVE OF COURT (CONTINUED)

his indigence solelyu

The relator has a right to file a writ of habeas corpus, and without the app-

allate record, cannot properly file a complete application.

II.

The relator calls upon the equanimity of the court, in that it should not toler-

ate a wrong~without gran~ing a remedy. See Chandler v. Welborn, ·294 SW2d 801, 807

(Tex 1956); Parvin v. Dean, 7 SW3d 264, 277 (Tex App Fort Worth 1999); and Pinnacle

Gas v. Read, 69 SW!d 240 (Tex App Waco 2002).

III.

Wherefore, premises considered, relator prays that this Cowrt grant this Motion

for Leave of Court, and allow relator to file this writ of mandamus.

Re~pectfully submitted,

Relator!:pro s 12071 FM 3522, French Robertson Unit Abile8e, Tx 79601

( 2) TABLE OF AUTHORITIES

STATUTES: Page:

Texas Code of Criminal Procedures 1 .88 3

Texas Code of Criminal Procedures 11.07 3

TEX Const. Art. I § 12 2,3,4

TEX Const. Art. I § 13 4

TEX Const. Art. I § 19 4

28 u.s.c §2244(d)(1) 3

u.s. Const. Amend. v 4

U.S. Const. Amend XIV 4

CASE LAW:

Bounds v. Smith, 430 US 817 (1977) 5

Britt v. North Carolina, 404. US 226 · (1971) 8

Burns V. Ohio, 36~ US 252 (1959) 6

Chandler v. Welborn, 294 SW2d 801 (Tex 1956) · 9, 10

DeLeon v. District Clerk, 187 SW3d 473· (Tex Crim App 2006) 4

Douglas v. California, 37? US 353 (1963) 7

Draper v. Washington, 372 ·us _487 (1963) 6

Durkin v. Lovknit, 208 F.2d 665 (5th Cir 1953) 10

Eskridge,v. Washington State Board; _357 WS 214 (1958) 6

Ex Parte Chandler, 182 SW3d_350 (Tex Crim App_ 2005) 3, 11

Ex Parte Hull, 312 US 546 (1941) 5

First Heights v .. Gutierrez, 852 SW2d 596 ( Tex App Corpus Christi 1 993) 10

Gardner v. Ca1ifornia., 393 US 367 (1969) 6' 7 Griffin v. Illinois 351 US 12 (1956) 6

Humble Oil v. Sun Oil, 191_ F.2d 705 (5th Cir 1951) 9

In re Bonilla, 424 SW3d 528 (Tex Cri~ App 2014) 1 ' 2, 5 In re Prudential Ins. Co., 14ff SW3d 124 (Tex 2004) 11

Johnson v .. Avery, 393 US 483 (1969) 5

Kniatt v. State, 206 SW3d 657 (Tex Crim App 2006) 3 TABLE OF AUTHUltRITIES - CONTINUED

Lane v. Brown, 372 US 477 (1963) 5

Lewis v. Casey~ 116 S. Ct. 2174 (1996) B

Long v. District Court of Iowa'· 3B5 US 1 92 (1966) 5' 6 Loynachan v. State, 13-12-00462-CR (Tex App Corpus Christi 2013) 4

Mallard v. U.S .. Dist Court, 109 S. Ct. 1B14 (l9B9) 10

Massingill v. State, B SW3d 733 (Tex App Austin 1999) 3

Picard v. 0'Conner,·404 US 270 (1971} B

Railroad Comm. of Texas v. Pullman Co., 312 US 496 (1941) 1 ' 10 Rinaldi.v. Yeager, 3B4 US 305 (1966) B

Rivercenter Assoc. v. Rivera~ B5B SW2d 366 (Tex 1993) 10

Robinson v. State, 16 SW3d BOB (Tex Crim.App 2000) 9

Ross v. Moffitt, 94 S~ Ctt 2437 (1974) B

Smith v. Bennett, 365 US 70B (1961) 5

State v. Loynachan ,, No o 1233936R 11

State Ex Rel Young v. Sixth Jud District,. 236 SW3d 207· (Tex Crim App 2007)

3, 11

State of Texas v. State of Florida, 306 US 39B {1939) 9

Tenn v. Lane, 124 So Ct. 197B (2004) B

Trevino v 0 Thaler'· 1 33 S. Ct. 1 911 ( 201 3) B

Walker v. Packer, B27 SW2d B33 (Tex 1992) 1' 3

Winters v. Presiding Judge! 11B SW3d 773 (Tex Crim App 2003) 10

Wolff v. McDonnell, 41B US 539 (1974) 4

( 2) CAUSE NO. ~AMSON LOYNACHAN, § COURT OF RELATOR V. § CRIMINAL LOUIS STURNS, 213TH DIST COURT IN HIS OFFICIAL CAPACITY, § APPEALS RESPONDENT §

IN RE LOYNACHAN

Relator 1 s originaL1application for a Writ of Mandamus.

To the Honorab~§ Court of Crimirial Appeals:

Comes now, Samson Loynachan, Relator pro se in the above-styled and nu~-

bered cause of action and files this original applicatfu~n for a Writ of Man-

damus, pursuant to Walker v~ Packer, 827 SW2d 833, 840 (Tex 1992)(A trial

court has no. discretion in determining what the law is or applying the law to

the facts, and, a clear failure by the trial court to analyze or apply th~ law

correctly will constitute an abuse of discretion.), and Railroad Commis~ion of1'

Texas v. Pullman Co., 312 US 496, 500 (1941)(An appeal to. a chancellor is an

appeal to the exercise of the sound discretion which guides the determination

of courts of equity.)

This writ of mandamus asks this Court to order the District Court to pro-

vide the relator access to his Appellate Records so that he may file:1a writ of

habeas corpus.

This Court recognized in In re Bonilla, 424 SW3d 528 (Tex Crim App 2014)

that, most generally, "an applicant will usually get only one bite at the

habeas-corpus apple ...• " and, " [ i] n all likelihood, an applicant will need to

obtain and review his trial transcripts ~o ensure that he considered the~entire

record so that he may present all his claims at what will likely be his first

and only bite[.] Id, at 533.

The Court then determined th~t by refusing to tell Bonilla how much his

transcript oost, the district clerk, ultimately preventing Bonilla from ob-

taining the transcript, cut off his ability to prepare and present a complete IN RE LOYNACHAN

Application for a Writ of Habeas Corpus. Id, at 533. This violated his right

to access the courts by preventing him from filing the writ of habeas corpus,

and was cont~ary to the notion that the (habeas) remedy (be) speedy and effect-

ual. TEX. CONST., art I§ 12. Id.

Given the ruling in Bonilla, the questi~n now asked of this Court is: If

a person, with the means to purchase the records, right o~ access to courts

has been denied/violated when they are prevented from purchasing them, are not

an indigent's rights likewise violated under the Due Process and Equal Protect-

ion clauses of the 14th Amendment when he is denied the same records solely

because of his poverty?

Samson Loynachan, TDCJ #1789266, appearing pro se, is incarcerated by the TDCJ

at the French Robertson Unit, 12071 FM 3522, Abilene, TX, 79601.

Relator has exhausted his remedies and has no other adequate remedy at

law. Relator filed three motions in the 213th District Court in Tarrant County

asking that court for access to his appellate record, which were all denied.

Relator appealled to ~he 2nd Court of Appeals, Fort Worth. Under Cause No. 02-

15-00135-CR, the Court of Appeals dismissed the appeal for want of jurisdiction,

deciding that the matter was not appealable. [Relator currently has a Petition

for Discretionary Review due in this Court on 25 September, 2015 under PD-0852-

15, to raise the question of jurisdiction only.] Relator filed a writ of man-

damus with the 2nd Court of Appeals under cause no. 02-15-00240-CV, which was

d~nied on 30 July, 2015. See also; In re Bonilla, 424 5W3d at 533 - relator

has no ade~uate remedy at law because th~ information he seeks pertains to an

unfiled, future post-convi~tion application for a writ of habeas corpus.

The act sought to be compelled is ministerial in nature. Texas has de-

termine~: As to the [ministerial] requirement, we have said that Lt is satis-

fied if the relator can show he has a clear right to relief sought. That is to say, when the facts and circumstances dictate but one rational decision

(2) IN RE LDYNACHAN

under unequivocal, well settled (i.e. from extant statutory, constitutional,

or case law sources), and clearly controlling legal principles. State Ex Rel.-

Young v. Sixth Jud District, 236. SW3d 207, 21 0 ( Tex Crim App 2007).

RESPONDENT.

Respondent, Judge Louis Sturns, in his official capacity as the 213th

District Court, has a ministerial duty to apply the law to the facts. See

Walker, 827 SW2d at 840, supra.

On 15 December, 2014, respondent denied relator's three motions asking

him to temporarily transfer or give a copy of the appellate record to the re-

lator. This was a clear failure by the trial court to analyze or apply the

law to the facts.

IV.

The fa~ts presented to the tDfual.court.

• Movant is trying to perfect a writ of habeas corpus under TCCP 11 .07,

which is a right and shall never be suspended. TCCP 1 .DB, TEX.CDNST. Art I§

12.

• Movant must view the Appellate Record to determine what he will in~

elude in the habeas record to support the habeas claims listed in motions. It

is his obligation to provide a sufficient record. Ex Parte Chandler, 182 SW3d

350, 353 (Tex Crim:·!App 2005).

• I am indigent and unable to pu~chase the records. Once the trial court

determines that the defendant. is indigent [], there is a presumption that the

defendant rem~ins indigent unless shown otherwise. Massingill v. State, 8 SW3d

733, 737 (Tex App .Austin 1999).

• Any further delays may piejudice my claim and impede me from a future

federal habeas filing. An applicant's delay in seeking habea~ cmvpus r~lief

may prejudice the credibility of his ~laim. Kniatt·v. State, 206 SW3d 657, 664

(Tex Crim App·2006). See also; 28 USC§ 2244(d)(1)(establishing a one-year

( 3) IN RE LOYNACHAN

time period of limitation to apply for a federal writ of habeas corpus).

• Affirming his conviction in it's Memorandum Opinion, the 13th Court of

~ppeals determined that movant's only avenue of relief was habeas corpus. See

Loynachan v. State, 13-12-00462-CR, pg 4 FN 3 (Tex App Corpus Christi 2013).

v. The law in this case;

(1) Is Constitutionally grounded:

• An applicant for habeas corpus relief has a constitutional right to

access to courts. Deleon v. District Clerk, 187 SW3d 473, 474 (Tex Crim App

2006).

• The right m~ access to courts ... is founded in the Due Process

clause and assures that no one person will be denied the opportunity to present

to the judiciary allegations concerning violations of fundamental constitution-

al rights. Wolff v. McDonnell,.418 JUS 539; 579 (1974). 1 See also; TEX Canst.

Art I §s 12 and 19, and US Canst. Amends. 5 & 14.

• The writ of habeas corpus is a writ of right and shall never be sus-

pended. Denial ~f a state created right has real substance and is sufficiently

embraced within the 14th amendment "liberty" to entitle him to those minimum

procedures appropriate under circumstances and required by the Due Process

Clause to insure that the state created right was not arbitrarily abrogated.

Wolff, supra, at 557.

• All courts shall be open, and every person for an injury done him,

in his lands, goods, person or reputation, shall have remedy by due course of

law. TEX Canst. Art I § 13.

• No state shall den~ to any person within its jurisdiction the equal

protection of the laws.

(2) Specific application of law:

• More than seventy years ago, the· Supreme Court recognized that right

[prisoner's access to courts] when it held that the "state and it's ofificers

(4) IN RE LDYNACHAN

may not abridge or impair [a relator's] right to apply to a federal court for

a writ of habeas corpus~•· Bounds v. Smith, 430 US 817, 821-822 (1977j(quoting

Ex Parte Hull~. 312 US 546, 549 (1941).)·[Cited in Bonilla, supra, at 531 ;]

• The Supreme Court has steadfastly insisted that there is no higher

duty than to maintain [the Great Writ] unimpaired. Johnson v. Avery 393 US 483,

485 (1969). [Cited in Bonilla, supra, at 531 .]

• Long v. District Court of Iowa, 385 US 192 (1966). In Long, petition-

er sought a writ of habeas corpus in the District Court. Id. The District

Court found against the petitioner on the facts of his claims. Id at 193. Pe-

titioner thereupon applied to the District Court for a free transcript, for use

on appeal. Id. The District Court denied the motion on the following ground:

''Habeas corpus being a civil action, there is no provision in the law for the

furnishing of a transcri~t without payment of fee[.]'' Id. On a petition for

a writ of certioDari from the Supreme Court of Iowa, [the Long[ court granted

the writ limited solely to the refuaal to furnish the petitioner, an indigent,

with a transcript of the habeas corpus proceeding, for purpose of appeal. Id

at 194.

The judgement below ·must be reversed. The State properly concedes that,

under our decisions in Smith v. Bennett, 365 US 708 (1961), and Lane v.

B~own, 372 US 477 (1963), ''to interpose any financial consideration be-

tween an indigent prisoner of the State and his exercise of a state

right to sue for his liberty is to deny that prisoner the equal pro-

tection of the laws.'' Smith v. Bennett, supra, 365 US at 709. We spe-

cifically held in Smith that, haveing established a post-convict~on

procedure, a State cannot condition its availability to an indigent

upon any financial consideration. And we held in Lane that the same

rule appl~ss to protect an indigent against a financial obstacle to

the exercise of a state-created right to appeal: from an adverse de-

cision in a post-conviction proceeding. In Lane v. Brown, supra,

(5) IN RE LDVNACHAN

at 372 US 483, the Court reaffirmed the fundamental principle of Griffin

v. Illinois, 351 US 12, 19 (1956Y'that 11 [d]estitute defendants must be

afforded as adequate appellate· review as defendants who have money

enough to buy transcripts.'' The Court in Lane went on to observe that

Smith had established ''that these principles wete not to be limited to

direct appeals .from criminal convictions, but· extended alike to state

post conviction proceedings," 372. US at 484. See also Eskridge v.

Washington State Board, 357 U~ 214 (1958): BUrns v. Ohio, 360 US 252

(1959); Draper v. Washington, 372 US 487 (1963). Long, id, at 194.

• Gardner v. California, _393 US 367 (1969). In Gardner, the petitioner,

filing for a subsequent writ of habeas corpus, asked for a free transcript,

which was denied. The Supreme Court reversed.

As petitioner in the instant case. desired to pursue his remedy in the

higher courts, he asked for a free transcript of the evidentiar~ hearillqg

before the Superior Court ... His motion was denied, and he sought review

of that denial,by certiorari to the District Court of Appeals. It was cl

denied, as was a timely petition for a hearing in the Supreme Court. We

granted.the petLtion for a writ of certiorari, []to consider whether the

rulings beloWJ"squared with our decisions in Griffin v .. IllinG1is, 351 US

12, and Long v. District Court, 385 US 192.

We reverse the judgement below~ If this involved an appeal from the

Superior Court's denial of habeas corpus, the rule of the Griffin case

would prevent California from not allmwing petitioner, an indigent, access

to the record whibh makes any appellate review meaningful while according

full review to all who have the money.to p~y their own way. This, how-

ever, is not an appeal., but the drafting of a new· original petition for

habeas corpus to the higher court. That new petition must reflect what

had transpired in the Superior Court. Gardner, id at 368.

(6) IN RE LDYNACHAN.

It was argued by the respondent that petitioner could draw on his memory

in preparing his application to the appellate. court, and tha~ court, if trou-

ble~, could obtain the transcript from the lower court. Id, at 369.

But we deal with an adversary system.where the initiative rests with

the moving party. Without a transcript, the petitioner~ as he pre-

pared his applia:ation to the appellate court, would have only.his own

lay memory of what transpired before the Superior Court~ For an effect-

ive presentation of his case, he would need the findings of the Su-

perior Court and the evidence that had been weighed and rejected in

order. to present his case. in the light most favorable.. Certainly a

lawyer, accustomed to precise points of law and nuances' in testimony,

would be lost withbut such a transcript, save perhaps for the unusual

and exceptional case . . The lawyer, having lost below, would be con-

scious of the skepticism that prevails above when. a second hearing is

sought, and would sorely need the tr•nscript in petitioning for a

hearing before .the appellate court as he would if the merits of an

appeal were at stake. A layman her:~ce needs. \bhe transcript ~ ~·

Id, at 369-378. (Emphasis added;-) [5]olong as transcripts are avail-

able. for preparation of appellate· hearings in habeas corpus cases, they

many not be furnished those who can afford them and denied those who

are paupers~ Id, at 378. (Emphasis added .. ) We conclude that, [] de-

nial of a transcript to an indigent marks the same invidious discrim-

ination which we held impermissable ir:1 the Griffin and Long cases

where a State granted appeals ~n criminal cases, but, in .practical

effect, denied effective appellate review to indigents. Reversed. Id,

at 370-371 .

• These principles that be~an with Griffin's holding.have not chang~d

in nearly SIX decades! See also: Douglas v. California, 37Z US 353 (1963)

(7) IN RE LDYNACHAN

(discrimination between the rich and the poor violates the 14th Amendment);

Rinaldi v. Yeager, 384 US_305 (1966)(ffince avenues of appellate review are est-

ablished, they must be kept free of unreasoned d1~tinctions that can only im-

pede open and equal.access to courts.); Britt v. North Carolina, 404 US 226

(1971)(While the outer limits of Griffin are not clear, there can be no doubt

that the state must provide an indigent defendant with a transcript of prior

proceedings when the transcript i~ needed for an effective defense or appeal.);

Ross v. Moffitt, 94 S. Ct. 2437 (1974){A state cannot arbitrarily cut off

appeal'rights for indigents while leaving open avenues of ·appeal for more af-

fluent persons.); Lewis v. Casey, 116 S. Ct. 2174 (1996}(Beginning _with Griffin

the Supreme·Court invalidated state. rules that required defendants to pay for

trial transcripts or to pay other fees necessary to have their appeals or hab-

eas corpus_p~titions heard .. (; Tenn v .. Lane~ 124_S. Ct. 197fr (2004)(0u~ cases

have recognized: a number of affirmative obligations that flow from. [the prin-

ciple that a State.must afford to all individuals a meaningful opportunity to

be heard]: The duty to w~~ve filing fees lin ·criminal cases], the duty to pro-

vide transcripts to criminal defendants seeking ~eview of their convictions,

and the duty to provide counsel to certain criminal defendants.). The extent

of this argument may not hav~ been presented to the t~tal court, but thatshould

not prevent this court from reachfung the merits and exercising its jurisdiction

in the matter. Accord Picard v. O'Conner, 404 US 270, 27~ (1971)(The ultimate

question for dispositfuon may. be the same despite .variatidns in legal theory or

factual allegations urged in it's support.)

VI. Further consideration.

The deni~l of the records to the:JrelatorG(when, in part, ineffective assist-

ance of counseL is being cl~~med):, magnifies the denial of Due Process in light

of the recent. decision in Trevino v. Thaler; 133 S. Ct. 1911, 1915 (2013) that

(B) IN RE LOYNACHAN

recognized that, "The structure and design of the Texas system in actual oper-

ation, however, make it virtually impossible for an ineffective assistance

cl~im. to be presented on direct review.'' See also: Robinson v. State, 16 SW3d

808, 810-811 (Tex Crim App 2000).

By leaving claims -of ineffective assistance of counsel for colla~eral re-

view (where a defendant loses his right to counsel), and then coincidingly

telling him that he cannot.have access to the records he will need, the state

effectively prevents his claims from being-properly presented. In :one instance,

the record has not b~en developed. In the other, it cannot be. This is a clear

denial of Due Process and Due Course of Law protections under Texas and US Con-

stitutional provisfuons.

VII.

Equity of the Court.

T~xas courts have full jurisdiction to give effect to any principles of

equitable jurisprudence that were develo~ed by the [nglish court of chancery

in 1789 and all rights and remedies are administered together by one civful

action and in the same proceeding~ ~Umble Oil v. Sun Oil, 191 F.2d 705,

(5th Cir 1951)(Case not available in unit law library- citation page not avail-

able.)

This is relator's last chance for the relief that he is requesting. That

relief is consistent .with the fundamental principl~s of Due Process and Equal

Protection, and is well aligned .to 59 years of Supreme Court holdings. Irrep-

arable injury is the indespensible basis for the existence of equity powers,

State of- Texas v. State of Florida, ~06 US 398, 411 (1939). ·

If relief is not granted, relator will not be able to file a complete.

(state off federal) application for a writ of habeas corpus, as demonstrated in

section IV. It is a well established pri171ciple .that equity will not tolerate

a wrong without gran~ing a remedy, Chandler v. Welborn, 294 SW2d 801, 807 (Tex

( 9) IN RE LOYNACHAN

1 956) •

The equity of this Court ought to look beyond the rulings of the lower ~u

courts tQ the heart of. the issue. [E]quity regards that as done that ought to

be done. Consequently, it emphasizes substance o~er form, First Heights Bank

v. Gutierrez, 852 SW2d 596, 605 (Tex App Corpus Christi 1993).

As demonstrated, relator has been diligent· in seeking relief ·to rnhich h~

is entitled. Vigilantibus non dormientibus aequitas subvenit, that is, equity

aids the vigilant, not those. who slumber on their rights. Rivercenter Assoc.

v. Rivera, 858. SW2d 366 (Tex 1993).

An appeal to a chancellor is an appeal to the. exercise of the sound dis-

cretion which guides the determination of the courts of equity, Railroad Comm.

of Texas v. Pullman Co.L 312 US 496, 500 (1941). A court of equity is a court

of conscience, Durkin v. Lovknit,. 208 F.2d 665, (5th Cir 1953)(Case not

available in unit law library -citation page not a~ailable.)

There-fore, relator as.ks this. Court to review this writ with it 1 s additional

powers under equity.

VIII.

Mandamus relief.

Mandamus relief' mayube granted. if the relator shows the following: (1) c

that the act sought is purely ministerial and (2) that there is no adequate

remedy at illaw. Additionally, the relator must have.a 11 clear right to there-

lief sought, 11 meaning that the merits of. the r-elief sought are 11 beyond dispute. 11

The requirement of a clear legal right necessitates that the law plainly de-

scribes the duty to be performed such that there is no room for the exercise

of discretion. Mallard v. US Dist. Court for Southern Dist. of Iowa, 109 S.

Ct. 1814, 1822 (1989). See also; Winters v. Presiding Judge, 118 SW3d 773,

775 (Tex Crim App 2003) ..

As to the ministerial requirement, Texas has said that.it is satisfied if

( 1 0) IN RE LOYNACHAN

the relator can show he has a clear right to relief sought. That is to say,

when the facts and circu.mstances dictffi:be but one rat·ional decision under un-

equivocal, well settled (i.e. from extant statutory, constitutional, or case

law sources), and clearly controlling .legal principles. State ex rel. Young,

supra, 236 SW3d at 210.

The long-standing, tilieat~y estabYished law provided in Section V.of this

writ, coupled with the .facts presented to the trial. court in Section IV of

this writ~ dictate but one rational decision.

Based on the ruling in Ex Parte Chandler,.supra, the petitioner bears the

burden of providing .the habeas recsrd. It is clearly unreasonable to think

that petitioner cen meet this burden of providing a complete habeas record

without even seeing what pages from the record' would be needed to create a

habeas record.

The petitioner has made explicit that he will need the Appellate Record to

properly develop the habeas record, and that he is still presumed to be indi-

gent. Therefore, it is likewise unreasonable to expect an indigent inmaie.to

purchase a record that·he cannot afford, particularly when a free copy has been

made already, due solely to his poverty~* Based on 59 years of U.S. Supreme

Court precedent and the most fundamental of constitutional rights, the state

must then provide the record to the .petitioner. (*The trial court has already

ordered that a free copy of the record be made for petitioner. See: State v.

Loynachan, No 1233936R, Clerks RecoDd, pgs 394-395.)

Relator ha~.no other adequate remedy at liliw, as demonstrated in Section II.

Mandamus relief will be gr~nted if there has been a.clear abuse of discretion

and the re~ilitor has no adequate remedy by appeal. In re Prudenti~l Ins. Co.,

148 SW3d 124, 135-138 (Tex 2004).

IX. Prayer for relief.

( 11 ) IN RE LOYNACHAN

·Wherefore, premises considered, Relator, Samson Loynachan, pro se, respect-

fully requests a finding that the Respondent, in denying access to the records

has abused his discretion, and violated the realtor's constitutional rights as

d~monstrated herein, that Relator has broqght this litigation in good faith,

and has substantially prevailed. Relator prays that this Court. grant the writ,

and order Respondent to immediately provide Relator access to the records

sought, by either transferring them to the unit that'he is currently incarcer-

ated at, or turning them directly over to him.

Respectfully submitted,

12071 FM 3522,. FRENCH ABILENE, TX 79601

X. CERTIFICATE OF SERVICE I hereby certify. that a true cop.y of.the.above. APPLICATION FOR.WRIT OF MAN- DAMUS was served:Jon Judge Uouis Sturns by placfung .a copy in the. U.S. MaiLadd- ressed to: Judge:Louis Sturns, 213th District :Court, 401 West .. Belknap, Fort l.ilorM, TX, 76196, on this the.3:(2( day of September, 2015.

~;s~o~N~~L~O~Y~N~A~~~~~~~~~------- XI. UNSWORN DECLARATION Pursuant to Texas. Civil Practice . & Remedies Codes. §1 32.001-1 32.003 the following is provided: My name is Samson Matthew Loynachan. My date of birth is 11 September, 1979, and my inmate identifying number is .1789266. I am pre- sently incarcerated at the. French Robertson Unit. in Jones County, Abilene, TX, 79601. I declare under: penalty of perjury that the foregoing is true and corr- ect. Executed on the :Jrc;tf' day of September, 2015.

SAMSON LOYNACH

( 1 2) CAUSE NO. ----- SAMSON LOYNACHAN, § COURT OF RELATOR § v. CRIMINAL JUDGE LOUIS STURNS, 213TH D~ST COURT, § IN HIS OFFICIAL CAPACITY, § APPEALS RESPONDENT § ORDER

On this day, came to be heard the foregoing Rilator's APPLICATillffiN FOR WRIT OF

MANDAMUS, and it appears to the Court that the same should be:

----GRANTED.

IT IS THEREFORE ORDERED THAT the Respondent shall immediately provide the APP-

ELLATE RECORD to the Relator in a manner consistent with the opinion of this.court.

SIGNED on this, the _ _ _ _ day o f - - - - - - - - - ' 2015.

JUDGE, PRESIDING APPENDIX

ATTACHMENT (1)

MOTION FOR TEMPORARY TRANSFER OF APPELLATE RECORD

ATTACHMENT (2)

ADDENDUM TO.: MOTION FOR'TEMPORARY TRANSFER OF APPELLATE RECORD

ATTACHMENT (3)

2ND ADDENDWM TO: MOTION FOR TEMPORARY TRANSFER OF APPELLATE RBCORD

ATTACHMENT (4)

IN RE LDYNACHAN, NO. 02~15-00240-CV

UNSWORN DECLARATION

Pursuant tci Texas, Civil Practice & Remedies Codes §132.001~132.003 the

following is provided to satisfy TRAP 52.7: My name:!is Samson Matthew Loy-

nachan. My date of birth is 11·. September, 1 979 '· ·and my inmate· identifying

number is 1789266. I am presently incarcerated at the French Robertson Unit

in Jones County, Abilene, TX, 79601. I declare under penalty of perjury that

_the following attachments are true and correct copies. Executed on this, the

:>~ day of September, 2015. 1).l13- l.2'33cf,3'-l\ .... 1)~R.. 3775 ·-"::'-·.

::. CA1:1st· N!i.• 1j-1·z-tlD461-'cR . . . Sll'ATE OF TEX'As ;;- . '' · · '. '; •. '§ ... ·:£til. THE. iHSfR'IC'T-:'COURT

\1. .§' U=l'TW JUDICIAL DISTRICT

5A.M5EIN· lOYNACfH\N . ' I -~ § .. '. ' T~~RA~l tou»TV, TEXAS

Now cain-~a- S'A'M5BtiJ·'LilYfdA't=:'HA·N{ )ilovan':t·' ihnt~e: a'b·Eive' ety1.ed' and' nu·m-

,. be·r.ed causa~-- and· r~~flactfui·l:y· ·mo·vits ·t'}.t'a'· f.tt~nC)rable :·au~t: t.~ -tran:ar

the· ·Ap~~al~·a·~e· r.'e'c~r·~·- t~ · ~h~-- R-6~~-~ds · C~i~-n·· a~~ ·· R~b-eirtson·- ~ni·t·· · · -- · · .. · ' ..· · · · Jf' ,._ · y~~"r~~- 12071 F'M · 3522 • ·' . . . ... ..· . . .·. · ·'-·_-''.· .";.~ · .q,~,.. '8,~.. ~-5-.~d}. ·. ·Abi~an·a:, TX· . . ' . ' . 7961l1,

Ond fo• Qo~~ ~·~•• :•••~•- fo~~¥$,~~~~If/dot'~ th;.

·. .. . . . . , . . ' 1' . ~a .. · .. lt-8i)J)Jf-Jj?l)ilJ .....Movan-t: .. i.e.'· -t:ilo:y4.A~· .;t~::.p~r-.f~·ct ·a·. wr i·t" ci f· hal:i eorpu s under· TCCP' '1 '1:. 07. ·.Movant ·i·lil. c.ur~entl'-y. 'rest'r1!i·.'ned·: 'in; hi~ i'ibe'rty· ·at· the 'Ro'bert.s·on·: ·f"a·cil- i'ty under ·the· parvieuranc~ gf- TDCJ. S:ee··.'f.t::Cfl 11.01·:;··· ·,·_.

The wi-i't gf- habea·a c.grpus. i.e·.:~. h.l-ri:t af right and shall· never be

susp-ended.·, ·S'e-8 :TEC"P-·1:.·0-iL.-· ~<- '· · · · · I' •' •,

··I·· n~·ed t'o· ~-j..&tw .'it.·e A:pfJe-l:la't·a·:R'ec~·rd;;:·sa ·I· can· 'ae·ve-ip.p. a'··h-ae-eas· rae-

·. ord ·.and 'dom~'il'~ :aV1ti:f~·nce. f'tir~·iity·'· 111r··Pt ;· ··sa~-- Ta;me·lZ·: ·v,. ·Dir!:!c.ta"r·~ .TDCJ •

550 Fed Supp 2d 639, 642 (E.D.·· Tex 2008) (Absent· ev'i:dan:ce in~· tlre ·.

record, a co'utt·· C'ia·nn'ot': c-D-ns.Hier :=-a··; habeas pet'i t'ione·l! I.'s bald ·assertions

..0\1 a critic·a.l issue_ in- his pro se petitiDn., t.insUPJ!l-arted' and· unsutr- · stantia-:t-~.d:. ·,tiiY -:~,ri·¥-t.fi::~ ng-"el.s'a .Q'ot'rt dmed ill the record_. to· be of prob-

ative evidentiary va·l_u-e:.-L ,a-nd fl< !!'arts Chandler, 182 · 5W3d 350, 353 . ... . . . ·,· "; : . .:•

( Tex Crim·. Ap.p 200.5':) ( A_n-_,app1ice.rt~: for a .wri.t af·: habeas corp u.s h-as the ' .,

obligation t.o pr.avl.d·e. ,a su'ffici!!lnt .record :that sup-ports his factual

al'legaticn.s · wi_th p.ro:~if· by a· -preponderance of the evidence.).

SCANNED II.

The 13th Court of Appeals determined that the issues presented them

·-· ·-------·-.,--.,.,.---~-~--------.------..,.-----------------

ATTACHMENT(1) --~.

-..... ·-../

in my Anders response .brie~ must .be add-ra~~~.d. in a writ. See memo-

ra.ndum ~p~n1~!1..13-1~-00~61'.-CR, 19 l:')ec, 2013, page 4 fN 3.

III.,

I hay~: attamp.t_ad plter_n-ative methods at. ·Db,taining the, r.ec._ords , ...so_:

that this mD:t~on. woul·d not.· be .. nece·saary .; J:IOII1B¥BJ;'.,. I . .am fina-ncially .. ~.. -·. .. _;,_- .: . . . . . . : - . :. ' ' . . ... · .. . ...·: . .. .. . .. . - . .. . unable ta ~cquire them. Sea Massingill. v .• : ~ate~ B SW3d· 733., 73,7 • - •• ' .......... 4 - ..

(T,ex -.Af.lp, Aus~in. 19~.~)(0r,Jc,,. th.e :rr~al ~,Ollf·t; d~·t.er.m.;_pes:: t,h.~t t~e defend- an_d is ~ndig_eQ.t an.d. ~.n.ti:tled_ to FIP.P.oiot~t:;L cQt;Jfl_sel,_ there is a p_resump- .. •• • • • • • . .,; • • -J : •• ... -· • • .... - • • • •• •

tion. tbet. the .daf~ndant. r~!Ji.aine. i!"digent. unl~;~ss ·l?l:lr;Jidn othe:J;Idisa·.). . . . . • .... .: _..... -:!\' . . '. . . . ~ .'1 ~

· !his- i!'l :\:h~ 2nd r.a~·tfe:~ submi.tted to this court. Any further '!·.. ··!'-.. ... :-. \ delays may pr.1iJjUdic~ m-y clp:im and impede me from a future federal : ' .. . .·· habeas filing. Sa.~. k~_eitt y· •.. St_~te ~. 2.0.~-· Sld_~,d. 65.7 t . ~.6lt. (Tex ....Cr.im . App .. 2006)(An applicant's delay· in se~~ing habeas cor~us relief may pre-

judi.ce tha_cr.~dibility-·~f'.his:C?l·aim.). a.nt;I.2B US.C § 22ft4{_d)(1)(e~~ab- • t • • •. • • • ... •• • : • ; • .. •• ' .. • •• ~

li!'lhitJg, a o.ne-Y.fil~r ..pe.rioc;f .. of _:):imi_~atio!J ..t~ . .ap.ply, fo~.. _a.,.fed~ral .1111'-:i.t

of habeas corpus.). ' .. ..< ..... .. ·:: ":- : '· '· .. • . .. .:-: IV. ; .' ., .: ~ , '.~ .. ' . .. a~_lo.ld . . ...·::: ... ~nd Wher'fora movant prays this court grant this . motian him to

continue i.n )1.ia .du~. d·ijl.1.$J.Bfi.Ce :t.~. e!:l\;lm~;t. ·r.he J?r!Jet :,Writ:.. U.p_on granting

of thh._motian, move.Jit. bt,ill send.. pa_yme.~t. . : .. ·' - .. - .... : ·• ..... . _, ~ --~ \ • . - . . . of .. !?.!:'l·~.pping . .. . the Clerk of l!lt Gou_tt·' s .. dire.ct~nn;~ ·.

.. .

... . .MOVA.NT, .P'.RO::SE- · ROBERTSON UNIT .•, 2'0'71 .F.M '3'522' · · · . :·.

ABILE.~E., TX 79601 ' . .. . .-

...·: ,. ... { 2) CAUSE NO. 13-12-00461-CR §' ~ ... STATE OF' TEXAS .. . .. . .. §" ..•. : . IN THE DISTRICT COURT .. . . . v. ~ ·~ ~- ~·

. 21 JTft JUDiCTAL. DISTRICT SAMSON LOVNACHAN § TARRANT" CQUN'TY,' TEXAS · .ADDENDUM ·ro: MOTION FOR· TEMPORARV·'TRANSFER OF APPELLA-TE RECORD To THE HoNoeA-a·l.·E Ji.JDsE ··or· 51\ro-·.;couRr:· ·. ·,· · · · · •· ··" · · ·· , N11Jw comes · SAMSON .. l.OVNACHAN. :_, msvant, ·. and submits -r-eceived· by this Court on. 24- Bctober·~ · 201.4 • . ··.: : ... . ... ... ..... v; '

:.. Movant; is trying to· perfect· his, habeas· htrit for ·the following ~{Mul.tiple.). Cue ·Rrt:~~:;-ess ..vielations·; Speeely·· Trial· ..\:lia.hS:~iEm;·_;·.:· · • • • •• • • ...... • < ~....... :,··. .. ... :·... ·· • • •• ~-·· ,. · Ineffective Assj;atlance of .;(Triaf)' .Co\-lns.el; and ' .. ·, Ineffective Assistance of· (.Appellat~). ·.c.ounsel; I • '• •

To me·et".:the requirements. of': filing . . ·th~. . .. . under TCCP·-~11.07,- movant' needs ..to· view writ. the record. to make. proper citai;'ipns .' . . . and· . detl;!r.mj.ne whet enclesure wi'll . . . . . ..: . . . ~. properly .aid ' . the habsas court.. An indigent c.i?iminal: defendant is anti tled t~ a· free . copy o-f· the Trial Re- cords once a showing :has been made that· the ·habeas. corpus' action i·s nc.t ·.frivolous, and there is a speci fie need·· (in· this, case indicated by the 13th· Court of Appeaibs). In . Re Carone;~ do,. 9~0 SW2d !591_., 693 (Ceuit of Appeals- S?n. Antonio .1 ~98). · See also; EscC&Jbar v State'~ 880 SW2d 782 (1-st App Hquston .199:5), and Eubanks v Mullin~ 909 .SW2d .574 (2nd App Fort Worth 1995) •. The evidence ~equired· to: be provided; to the habeas court·. cannot be properly or adequately compiled wi.thout reviewing the r·ecord. In Re .Strickhausen, 994 SW?d ·935 ,·:: 937 .(1st J~pp Houston 1999 ):(Given a compelling, recognized reason, a crim.inal defendant. is entitled to a free copy of·the_record.) ·-see also;Umited States v MecCbllDm·, 96 5~ Ct;; 2086 {1976). Under Texas .-and_ U.S. governing laws,-· movant requsts -1;·he ·court send·:him·· a_ f·ree copy· of the Trial Records. In. the!' alterneti ve, movant requests the ·temporary····_transfer of Records as initia~1y requested. *This is not to· be construed.: as ·an actual collateral. attack· to the convict-ion, rather a good faith· showing to .comport with ..the rulings of the courts. of Texas. VI~

Movant. requests a hearing for: this motton ·on the next day motions are· disposed of in this Court. Consideration. of a moU!bn properly .filed·and before .a.court·is min.ilsterial. In Re Christensen, 39 Sw3d 250,. 251 (Tex App Am~rillo 2000)(citing White v Reiter, 640 SW2d 586.. (Te?< Crim App, 1:982). Fundamental requirements o.f Due 'Process mandate an . oppor- tunity to be . heard. Creel v District Atty. for Medina ..(~ounty, 81 8SW2d 45, 46 (Tex 1991) . VII. Movant requests timely copies of any rulings made·the court on this·motion.

-------- ----·--- .... ······-· . ATTACHMENT (2) VIII.~

Mp~ant . .s~e.~J;"B ~h!'l.t ... all information provided. herein is true and adcurate to the best of h!lls ~nowledge •. :.~. ... "{ .·.. ~ ... '·' . ' :· ~~-· .:. . . '. '. Movant prays for ali reiie'.f requested and any other i:-"eh~f :that.. may. be. a;fforded, him• . • •. , • . ,., -. I ~ • un~e~ .. State and Federal ·~. , Const~tutional ~aws. . . . .· :: . : ~ .. : .. :'. . I'

.. ··...: .. : .• •! ••

Re~pectfully submitted, .. .. . .

::5;;.:~4--~"~~-- .• I!M,; 201-' ~-

SAMSON·M~ . I 'MOVANT' PRO SE· . ·. :.. ('~. :' ·,:· . '~, .·: .....Ri:Ja~·RTShN 'uNit : .: ... .,. . ..... ,·. ·' ... ": 120'71 FM 3522 : .. ,;;. ,\

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(4) -...,..------·-·--.----- ..-------- ALEO . THOMAS AWll..OER ·OIST..CLfRt< l:>c;L \3 I IJ .. . TARAAtfYC~U~~AUSE fli0.·13-12-0D461-CR · .• ~q~~ STATE OF TEXAS . 0Et. t1.~14...: .· ·.....dif.-!~l:·· ..,.. . :. .. .. -·~I~f"THE O~STRICT COURT

:~MSDN LDiNACHAi{IIIE . ff>:l}c tif!!i.t:qifr/~. . . 2)3f,H J~OIGI~L DISTRICT 8Y t _ _:_ . :· . . , . . §: _... • -~'. -~' :ARRANT C~~NTV, TEXAS· 2ND ADDENDUM· TO: MOTION FOR. TEMPORARY TRANSfEir ·oF· "APPELLATE. RECORD . ·~ ' .. _TO THE HONORABWE JUDGE OF SAID COURT: Now come~ SAMSDN tOY'NACHAN, m~vant pro.. ~e,: '~~-d submit~ ·=the:. ·fotiow.iiig adde.ndum to said motion received by· this Court on 2~ October, 2014. · · •' ' •{ • ' ' ' • ' ~ • l '•' • • ., • !' 6,: ... . x. I • . : • • • • • ·: o' •

. . .. .. . :. .• . ·. ·.. ·~ -... ·. . ' .. '· ._ . . . . Movant has he_sitated to expound cin· the"Coristltutiiiilal Errors .to ahow a nece·aany for 'the ·· record far ~e~i' t!:t.at a':'· -~1-~~~r~~~o~:· ~ould '~e:t~·~;~_~-~~~~e~ b'y .the: Co~~t. ~8 an a~~~al :collateral attack, ~hl~h w~-~ld -~o~v~rt_... th~ fo;t!i~6mi~~-- wr'i"-t'. :i'nto.. a ;~~~~~~si~e .:~l"lt~·· ·.lifi:th ~n·'· abun'd~nce ' ,' • • ·• ... ·~-: • '.'. ' : ._ .. , .: •• • • ~... •,. I··~.~... : ' "· : •: ·~:.,-.. • ,• • • f>.=~' •' of caution, in an effort'tci'show·gocd cause,·after re-reading'the controlling State and Federal controlling case lhillw Movant. modifies §5, paragraph . . • .: .. . •· . . -. . -., : . .,·_ . . . ... •. • .... ··!:.: ... ; . ..... ..... . on~ :~~- .foll~ws: 1 • : •• . ...... · (Multiple) Due. p·:racess \iio!atioiis: ( 1 ) Denied a heariJ'IQ as ·-r~quested in. mot.ions. on substitute c'e~ims-~1/Sp~edy" Trial. [Armstrong v. M-~~zo ,. ~ao ·u.s s4~ ...,(1 ~~5)] ..: ' '· ·- '. ; . (2.) D~nied··ouei'"pr·acesa' ·wh~n· the Tria{'·~b~~t:.~ffectuated -~· ~cintinuance outeie:ie"tha··. -··rule~· set fort~· b.y T.•. c.'~:·.P. 29 fo~ ~h~- -~~a-te·. . . [W~lff v:~-· ·M~D·~~ne·li·, .:41a . . . ..·u·s ·s3~, . ... . 557 {1974)] . (3) Denied Due Process when State was allowed to use lesser· included. offenses of TPC-.1~ ."o~ (M~risl~~ghte.r)·.-~· co·n~i6·1: ·~inr TP~ .1g~··ok:(b) {'3H~elony M~rd·e~:)·.,{TCCP.· 37.09 1 (2);

Cavazos v. Stat~,. 3B~_.Sb1~? _37.7.(Tex_Crim.App 2012_)_;.Gilmore v. Taylor, SOB_US 333 (1993}] ( 4) ·Oe~ted.. Ou~ · Pr~c~~~ -~hen· th~ T~ia:I:' Cour1;. ~iio~~.d iinpr_ope; ·jury c~a~g-~s 'to be submitted to Jury. , [Sansone v •. u.s.,_ 360 US 343,'·_-:3~9-3sci :(1'9.ss):]'· ·.,:. ··.•· · -~· :. · . ·. ( 5). Due Process was substantiall.y. affected by the _State' 9: closin!l).· a;~u~~n~ ( farsical ~mitation _of the dec~ased), and·in .requiring 'the .defendant to testify to· tl:te veracity of the stat~•s .witn~-s~~s· •. ·· ·[D·~~n~'~·l.y·..-~.·D~Ch~i~~~f~r~:'.416. us:.·s3-7 (197.4.)"; Re~ey ~-~·State,' :,95B SW2d 867, 982. (App w~co .. 19!n) (it·. is ·imp;~p~r··:[f~~· th~'.pr~s~c~~idn]. t~ :.~~quire "(the· ·acc~-~ed] to .express his opinion as to the tr~th or falsity of testimony contradicting him. Citing Johnso·n· v. state, 614. sw2d. ·1,~8- 'era~ ~~~·m;·.Ap~· \·~a1)) l Speedy· Tr.i·al violations: was .. del'l.ied ._a.Speedy.. Trial.... end·_.a (All under Strickland v.· Washington, 466 US 668 hearing on the merits .to make ~roper-sp"eedy - (198~)

- standard

- (1.) .· .:·.. ,· . . . . ·" . Trial determination. [Barket'. v. Wing.o, 4:07, IllS_ 51"~ .{1972) 1 --· - . ·... Ineffective Assist·ance of· (Tr~a.l)" ~~uns~r:· ~ (1) For causing, hir.:tderingi ·an~ failing to object to ·.the above Due Process violation [Armstrong v. Manzo, supra; Sansone v. U.S., _supra; Mathews v. U.S., 485 US 5-8 (1988); Hodge v. Hurley., 4-26 F3d 368 (GA6 2005)] ( 2) .. For requesting 1.mproper lesser _included offenses, which under current state law alloeed the.State to puraoe felony murder under TPC 19.02{b)(3) ultiinatel.y· eubjE!cting

- the defendant to SIX theories of murder as opposed to ONE MURDER charge and HOMDCIDE CHARGES. [Sansone, supra; Ex Parte Welch, - - TWO lesser 981' SW2d 1B3' {Tex Orim App 1998); .

....... __ · - - - - - - - - - - - - - - - - - - - - - - - - .. -- ..--..·-··

ATTACHMENT (3) Hcilmes v. south carolina, s41.us 31~r (2oo6}; 'sinith ·v. oretke, 4i-(F3i:J 43~ (cAs_:~ll·os) ~· .( 3" ~or .~si~9. an 'um.•eae.~neble tria{ ~trate$y ,;,Meii he € l': .Mitke.ns v:-· ta~l.ci·r~.- $35 us 162 ·(2oo2ll J;~eff~Etive A~sistanc~ ·a·f· CA~P.ailate{·cQun~el; · ·Und~;· Strii:kl~n'd~ ·a·u~r~; a~d' Penson >.~. .·.~ ..... ·.:·.~~:.· ~- .·.~··~ ..· . . !'... :~· , · .• ·~· ... ~. ' ~ .. · ·•. •• ·.: ,···· v •. Ohlc, 109 :5. Ct 346. (1.988)] _ . , <1) · #'or f~iiiri 9 . t~: r~h~ ·~evie..;··th·e 'r~car~·;·' lA~ders\i.~.:t~utbrnia, 3'86 us 738 .. (1967); Evitts v. 'Lucey, 469 U.S 392 (1985)1 · · · · .. : ':•· ' ·· · ·· (2) ·' For ·f~·iilng tCi'·r~·i~Ei'~hV (of ~the; otherwise)· na~~f'dvai~u~ errors. above' or [Iii RE Schulman, 252 51d3d ~03 (Te~ C~lili:JApp ·2008); .· A~d~i-~'; a'Jpra;. P~nsdrt; eu~ra} . · .. . . · .(3~ ~or· ::fhf~g ·,a,:~~f.~f t~a.~~· i~·:··es.a·~~~~,' al'~ue~'f>at ~h-e}s-~ate. £Lombard v. tyriaiJgh., :asa: -F2d. 1':475· (.C.As·· :1.989}.] ~-..... ·. !".. ~ ~- ··•• ~;· -·.· ~ •· •

·o~ .•,. ,•~ ;· (:~:(!:~:~r:::.":,:,::,;t.~":::t::::·.~[:l:~:::~::u.:>~:.~::::::.:·.:~·· . defi:'!f:tdaht. {Cuj.ler \i. Si:illivah,._ :4i+6 _us. 33_5 (19BO). -. I

. .. .•· . •. ..·; ... .: .• ~ ,; . ·.•. ~· Th~s Hat is nat exh!Justive. ·· •. . .:· ... ...: 1 • • • • ~ ....• ... I : ; ..._..,..~4 ... xr. av~rit: t:hat the"'t~~rt .has -~i;ead'y ~msdl:( an' 'adv~rs·~ ~uti rig.' on'origiii~i motiari ,_ In the Movant tequest~: -a .r·~-he·a.rj,~~ :·ta ciririsider th~'. -c.~11tent5 of'·.-this'::.~dd~ndum. · .;' _;_ . .. ~ ;. . : . :. ··~ . ·:. ... .. .·. ·. -~ . . ... :: •.' ·: ·. .· : ...'. ' ·~ : •. .. ..

.... ..: . ..:·,.

..... .

. t. · A CERTIFIED ATTEST: ~-610/f ES\f , THOMAS A WILDER . DISTRICT CLERK ··::: .. TARRANT.CQ~Aa ......... . S't ... ······ ·. ···~ .. . '· ·

.DEPfi1v.~ . f6) _CAUSE NO. ~1-/f- ZJf().,.(J./ SAMSON LOYNACHAN, IN Tf-lE 2ND DIST~ICT RELATOR . v. § § APPELLATE COURT LOUIS STURNS, 213TH DIST lUi¢EIVEQ § IN HIS OFFICIAL CAPACITY, · § ~e ~ TARRANT -COUNTY, TX RESPONDENT · JUL. .l l ., §. 'h...Pv~ ,~::. ~ ~~q COU~-;-O . · .//~ (}~);.0~4.~() f

· IN RE LOYNACHAN A SECOtv~. ' __F Af'PE~ v~ "f .() -~"'-;-,..~/ IO..o RELA_TOR 1:S originaJoe! Y!~iRI¢VII(!)F a Writ -of Mandamus.~~- . . ~-; ~ ~PISAK I s 'C#fj' J> . "'..<' ~d' To tlie H!JnOral;i:JJ~ 2nd Court of A·p~Saqftl! ~A}-.f' ~ ~-t"c,d' Comes now, Samson Loynacha11, Relator Pro Se in the ·above-sty?'efl- and numbered cause of "C . action and files this original application for Writ of Mandamus, pur~t to Wa'lkker v. Packer, 827 SW2nd 833, 840 (Tex 1992)'(A trial court. has no discretion -i~determining what .the law is or applying the "law to the fa~ts, and, a clear failure by . the trial court to analyze or apply the law correc_tly will ,constitute ·an :aouse of discretion.-), ·and would show the court the following~

Samson Loynachan, TDCJ #1789266, app·ear.ing pro se, is incarcerated by the TDCJ at the French Robertson un·i t, 12071 FM 3522, Abilene, TX, 7!:)601... Relator has. exhausted.· his remedies and has no other adequate. remedy at l!aw. See; Loy- NACHAN V. TEXAS, No. 02-15-00135-CR (2nd Court of Appeals, 25 June, 2015){Relator filed an appeal in this court, frcim the trial court's 15. December, 201.4 denial of tl'!e composite motio~: MOTIO~ FO~ TE~PORARY tRANSFE~ n~ APPELLATE 'RECORD, that ~as fildd in this co~rt on 9 April, 201 5. * This court dismissed that appeal. on 25 June·, 2015 for want of jurisdiction deciding that the order was not appealable.(*Trial court/clerk never provided notice of de- nial of motio~. This court sent a ~opy of the denial as part of it's ruling in: In r~

Loynachan, No. 02-15-00074-CV on.19 ~arch, 2015.) The act squght to be come·lled is ministerial in nature. Texas haei determined: As to the [ministerial] requirement:, we have said that .it is satisfied if the relator can show h~ h~~ a clear right to relief sought. That is to say, when the facts a~d circumst~nt~s

dict~te but:one.,rational decision under unequivocal, well settled (i.e. from ~xtant ~tat­

utory, constitutional, or case law sources), and clearly controlling legai prl.nciples. State Ex Rel. Young v. Sixth Jud District, 236 SW3d 207i 2~0 (Tex Crfm App 2007}(Emphasis added.) Ii. RESPONDENT. Respondent, judge Louis Sturns, in his official capacity as the 213th District C6urt has·. a ministerial duty to apply t!1e law to the:1facts. See Walker, 827 SW2d at 840, supra. On fS December~ 2014, respon~ent denied relator's MOTION FOR TEMPORARY TR~NSFER 0~ -:,:

APPELLATE RECORD, under cause ft1233936R. ·This was a clear failure by the trial court to analyze or apply the law to the facts .. III. lbe facts presented to the court.

ATTACHMANT (4) IN Rt LOVNACHAN (APPLICATION FOR WRIT OF MANDAMUS) CONTINUED •• Movant is trying to perfect a writ of habeas corpus under TCCP 11 . 07, which is a right and·.!shall never be suspended. TCCP 1 .DB •. See also; Tex. Canst, Art. 1 §12. • Movant must view the Appellate Record. to determine what he will include in the habeas record tosupport the habeas claims listed in motion. It .is his obligation.to provide a sufficient record. Ex Parte· Chandler, 1.82 SW3d 350, 353. (Tex Crim App 2005). See also, Ex Parte Graves, 271- SW3d 801,803 (Tex App'Waco 2008), Tamez v. Director, TDCJ, 550 Fed Supp 2d 639, 64-2 (E. D. Tex 2008) (Absent evidence ·in the record, a court .cannot consider a habeas petitioners bald assertions: on a critical issue in.his pro se petition, unsupported and unsubstantiated by anything else contained in the record, to be of probative evidentiary value.), Ex Parte Garcia, 353 SW3d 785, 7.89 (Tex Crim App 2011)(Sworn pleadings provide an inadequate basis upon which to grarit relief in habeas actions .. ).• • I ain indigent and unable to purchase the records. Once the Trial Court deter- mines that the defendant is inaigent [1, there is a presumption that the defendant remains indigerit unless shown otherwise. Massingill v. State, 8 SW3d 733~ 737 (Tex App Austln 1999). ·• Any further delays· may prejudice my· claim and impede me from a future federa·l ~abeas filing. An applicant's delay in seeking habeas corpus relief may.prejudice the cred- 'ibili ty of his cla.iJm. Kniatt v. St'ate, 206 SW3d 657, 664 (Tax Drim App 2006) • See· also; 28 USC § 2244(d)(1 )(establishing a one!.1year. time period of Hmi tat_ion to apply for _a federal writ of habeas. corpus)~

• Affirming his conviction in it's Memorandum Opinion, the 13th Court of Appeals determined that movant's only avenue of relief was habeas corpus. See; Samson Loynachan v. State, 13-12-00462-CR, pg 4 FN3 (13th COA 201 B}. IV. The law in this case. (1) Is Constitutionally grounded; • An applicant for habeas corpus relief has a constitutional right t.o access to courts. DeLeon v. District Clerk~ 187 SW3d.473, 474 (Tex Crim.App 2006}. • The right. of access to courts. • • is founded in. the Due Precess clause and assures that .no one person wiil be denied the oppoi",tuni ty to present to the judiciary all- egations concerning violations of fundamental· constitutional. rights. Wolff v. MC:Dtmrlell, 418 us 539, 579 ·(1l974). See also; Tex Canst. Art I §s 12 and 19, and us Con.st. Amends. 5 and 14. • The wri~_of habeas corpus is a writ of right and shall never be su~pended.

Tex Canst. Art I §12. Denial of·a stat13 created right has real substance and is sufficient• ly embraced within the 14th Amendment 11 liberty 11 to entitle him to those minimum procedures appropriate under circumstances and required by .the Due Process· Clause to insure 'that the state created right was not arbitrarily abrogated. ~. supra~ at.557.- • All court~ shall be open, and every person for an injury done him, i~ his lands, goods, person or reputation, shall have remedy by due course of law. Tax Canst.

(2} IN RE LOVNACHAN (APPLICATION FOR WRIT OF MANDAMUS) CONTINUED Art. I §13·-'. •· T~e US Cbnst. Amend XIV also provides that US citizens will not be denied by the states, Equal Prot.ection of the Laws~

(2) Specific .applic.ation of law: .... More than· seventy years ago, the Supreme Court recognized that right [prison- er's access to courts] when it held that the "state and it's officers may not abridge or impair [a 'relator Is] right to apply ~0 federal court for ar::writ of ~abea~ corpus. II Bounds v •. Smith; 430. US 817, .821-822 (1977){quoting Ex Parte Hull, 312 .Lis 546, 549 (.1941).}[cited in: In re Bonilla, 424 SW3d 528 (Tex Crim App 2014)] • The Supreme Court has steadfastly insisted that there is nci higher duty than tci maintain [the ·G~eat Writ} unimpaired. Johnson v. Avery 393 US 483, 485 ( 1 969) . See also; In re Bonilla, ~upra.

• Long v. District Court of Iowa, 385' US 192 (1966). In Long, petitioner sought a writ of habeas corpus in the District Court. Id. The District Court found against the petitioner on the· facts of his claims.. Id at 193. Petitioner thereupon applied to the District Court for a free tnanacript, for tise on appeal. Id. The Distritt Court denied the motion- on the following gr.aund: 11 Habeas corpus beingacivil action, there is no provision in the law for the furnishing of a transcript .without payment of fee [.. } 11 Id. On a petit- ion for a w~it of certio~ari to the Supreme Court of Iowa, [the Long] court ~ranted the writ !!Jimited sole~y to the refusal to furnish the petitioner, an indigent, with a trans- cript or the habeas corpus proceeding, for purpose of appeal. Id at 194. 7he judgement below must be reversed. The State properly concedes that, und~~ our decisitins ih Smith v. Bennett, 365 US 708 (19~1), and Lane v. Brown, 372 LiS .477 (1963), 11 to interpose any· financial consideration between an indigent prisoner of the State aris his exercise of a state right to ·sue for his liberty is to deny th~t prisoner the equal protection of the laws. 11 Smith v. Bennett,', supra, at :365 US 709. We specifically held in Smitll ·that, having ·established a post-conviction .. procedure, la s.tate cannot' con- dition its availability to an indigent upon any· financial 'consideration. And we held in Lane that the same rule applies to protect an indigent a- gainst a financi~l obstacle to the exercise of a state-crgated right to appeal from -an adverse decision in a post-convicticin·proceeding. In Lane v •· Brown, supra, at 372 US 483, the Court reaffi-rmed the fundamental princ- iple of Griffin .v. Illinois, 351 US 12, 19 (1956) that •i[d]estitute def.end- ·ants must b'e afforded as adequate appellate ·review as defendants who have money. enough to buy· transcripts. 11 The. Court in ·Lane went ·an to observe that Smith had established 11 ihat these principles were not to be liniited to direct appeals. from criminal convictions, ~extended alike to sta'te post conviction proceedings. 11 372 US at 484. See also Eskridge v~ Washington

( 3) IN RE LOVNAtHAl (APPLICATION FOR WRIT OF MANDAMUS) CONTINUED State Board, 357 US 214 (1958); Burns v. Ohio, ~~Q US 252 (1959); Draper v. I Washington,. 372US 487 (19.63). Id, at 194-. • Gardner v. California~ 393 US 367 {1969). In Gardner, the petitioner, filing for a subsequent wtit of ha~~as corpus, asked for a free transcript, which was denied~

The Supr~me Court reversed. As petitioner in the instant case desired to pursue his remedy in the higher courts, he asked for a free transcript of the evidentiary hearing before ·the Superior Court. His motion was denied, and he sought .review of that denial by c~rtiorar~ to the District Co~rt of Appeals. It was denied, as was a timely petition for a .hearing in the Supreme Court. We granted the petition for a writ of certiorari,[]to consider· whether the rulings below squared with.our decisi6ns in Griffin v. Illinoia, 351 US 12, and Long v. District ~. 385 us 192. We reverse the:!judgement below. If. this involved an appeal from the Superior. Court s denial of habeas corpus, the ruie of the Griffin case would 1

prevent California from not allwciwing petitioner, an indigent, access to the record w~ich makes any appellate.review meaningful While according f~lL

review to all who have the money to P!'IY their own way. This, tJowever, is not an appeal, but the d~afting of a new original petition for habeas corp~s

_to the higher court. That new petition must reflect what had transpired in the Superi~r Cou~t. Id, at 368, It was argued by :the resp_ondent that pe1;itior:ter !=Duld draw on his memory in preparing his applicatioti11to the appellate court, and that court, if troubled, could obtain the trans-,. cript from the lower court. Id, at 369. But we deal with an adversary system where the initiative rests with the moving party. .Without a transcript, the petitioner, as he prepared his appliCation to the appellate court, ~auld have only hi• ow~ ·lay membry of . what. transpired before the Superior .Court.. For all effective presentation· of his case, he would need the findings of the Superior Court and the evi• dence that had been weighed -and rej~cted in order to. present his case .in the light~mbst favorabt~ • Certainly a~lawyer, accustomed to precise points .of law and nuances in t.estimony, would be lo_st wi tt-Jout. suci") a transcript, save perhaps for :the un~sual and exceptional c!3se. The. lawyer, having 1o.s.t below, would be conscious of the skepticism that prevails above when a sec- ond hearing is sought, and wo8ld sorely need the transcript in petitioning for a hearing before the appellate cour·t as he would if the merits of an appeal were at stake. A layman hence needs.the·transcript ~ ~. Id, 369-370 •.•• [5)o long as transcripts are available for· preparation of app- ellate· he'ariri_gs in habeas corpus t:as·es, they may not be' furnisheo those

~4) IN RE LDVNACHAN (APPLICATiON FOR WRIT OF MANDAMUS) CONTINUED w.ho can affprd them arid denied those· who are _paupers. Id, at 370. . . We conclude that,[] denial of a transcrip:t to an indigent marks the same in- vidious discrimination which we held impermissable in the Griffin and Long cases where a State granted appeals in criminal cases, but, in practical, effect denied e·ffective appellate review to indigents. Reversed. Id, at 370,..371. • These principles that I:Jegan with Grit'f'in's holding have not changed in nearly SIX decadest · See also: Douglas v. taiifornia~ 372 US 353 (1963)(discrimination between the rich and the ·poor violates the 14th Amendment)'; Rinaldi .v. Yeager, ~384 US 3o5 (:1966}(0nce avenues of appellate review are established, they must be kept free of un- reasoned distinctions th:at·· can only impede open and equal access to courts.} ; Britt v. North Catoliria, 404 US 226 (1971)(While the outer limits of·Griffin are not clear, there can be no doubt that the state must provide an indigen~ defendarit with a transcri~t of prioi proceedings when that transcript is needed for an etfective defense or appeal.:}; Ross v. Moffitt, 94 s. Ct. 2437 (1974)(A state cannot ·arbitrarily cut off appeal rights for indi- Qents while leaving ~pen avenues of appeal for more aff~~ent persons~); Lewis v. ·casey, 116 5. Ct .. 2174 .(1996)(Beginning with' Griffin the Supreme Court invalidated state rules that required indigent:;criminal defendants. to pay for trial transcripts· or to pay other fees necessary to have their appeals or habeas· corpus. petitions.heard~); Hmn v. Lane, 124 S. Ct. 1978 (2004)(0ur cases have recognized a number of af..firmative obl~gations that flow f~om tthe principle that. a State must affbrd to all individuals a meaningful opportunity to be heard]: The ·duty to waive:·!filing fees [in criminal cases], the duty to provide transcripts to criminal defendants seeking ·review of their- convictions, and the duty to provide counsel to certain criminal defendants.). The extent of this aigument m~y not have been presented to the trial court, but that should not prevent this court from reaching the merits and exerc1s1ng it's jurisdiction in the matter. The ultimate question for disposition may be t_he same ·despite· variations in legal theory or factual allegations urged in it's support. Picard v. O'Conner, 404 US 270,277 (1971). v. Further consideration •. The denial of the records (when,_ in part,_ ineffective assistahte ~f tounsel is being claimed), magnifies· the denial of Due Process.in light of the recent decision in Tievino v. T-haler, 133 s. Ct. ·1911, 1915 (2013) thatacknowledges ttiat, "The structure .and design of the Texas syste•.in ~ctual operation, however, make it virtually impossible for an in~ffect­

ive assistance claim to be presented on pirect. rev.iew ~" See also: Robinson v. State, : :i 165W3d BOB, 810-811 (Tex Crim App ~000). By leaving claims of ineffective assistance of counsel for collateral review (where a defendant loses his right to counsel, and then coincidingly telling him that he cannot have ~ccess to the ~ecords he will need), th~ st~te ~ffectively prevents his claims from being

(.5) IN'RE LOVNACHAN· APPLICATION FOR WRIT OF MANDAMU~) CONTINUED properly presented. In one· instance, the record is not developed. In the other~ it cannot be. VI. ~andamus relief .. Mandamus re'lief may be granted i f the relator: shows the following: (1) 'that the act sought is purely ministerial and (2}. that thet.e-!is no adequate remedy: at 1aw. Additionally, the relator must have a "clear right to the r·elief sought.," meaning that the merits of the· case relief sought are "beyond dispute." Tha requiremerit of a clear legal ~igh~ nece~sitates that the law plainly describes the duty to be performed such that there is no room for the exer- cise of discretion. Winters v. Presiding Judge, 118 SW3d 773, 775 (Tex Crim App 2003). See also: Mallard v. U.S. Diet Court for Southern Dist. of Iowa~.109 S. Ct. 181~, 1822 (1989) As to the [ministerial] requirement, {Texas_has] said that it is satisfied if-there- lat6r can show he has ~.clear right to relief sought. That is to say, when the facts and circumstances dictate but one rational decision under unequivocal, well. settled (~."e. f-rom extant statutory; constitutional, or case law sources), and clearly controlling leg!=!l.l.pr1n- ciples. State ex rel. Young, supra 236 5W3d at 21 0,. The long·-standing, clearly established law provided. in Section IV of this writ, coupled with the fact·s prese11ted to the trial court in Section III of this writ, dictate but one rational decTf!ion. See also: Walker,, supra,, 827 SW2d at 840. Based tin th~ t~ling in Ex.Patte Chandier,~supra, the petitio~er bears the burden of prov~ding the ~abeas record. It .is clearly unreasonable to think that. petitioner can meet this burden without even seeing what pages from the record would be.needed to create a habeas record. f The petitioner has mads explicit that he will need the Appellate Record to properly develpp the_ pecord, and that he is still presumed to be indigent. The~efore, it is like- wise unr_easonabl~:! -t;o expect an ind~gent inmate to purchase a record .that .he cannot afford, particu'raj:-ly wh_en a free copy 'has already been made due solel.y to his poverty.* Based on 59 years of U.S. Supreme. Coutt prer;edent a_nd the ba13ic of all consHt~tit:)nal rights, the stat~ ~tist· th~n provide the record to· the petitioner.(*The· trial court has already ordered that a free copy of the record be made for petitioner. See: State v. Loynachan, #1:233936R Clerks Record, pgs 394-395.) Relator has no other adequate remedy at llaw,, as determined by this court in Lo}machan v •. State, 02-15-00135,...CR on 25 June, 201 5. (Decidi!lQ that they did not have ;jurisdiction to decide merits of appeal, for order denied was not appealable .. ) Mandamus relief will be grarited if there has been a clear abuse of discretion and the relator has no adequate remedy by appeal. In re Prudential Ins,. co .... 148 SW3d' 124, 135--136 (Tex 2004} •.· See also: Mallard, supra 1 09 5. Ct • at 1 822; and In re Derzapf, 219 SW3d 327, 334 ( Tex 2007) •

{6) IN. RE LOVNACHAN (APPLICATION FOR WRIT OF MANDAMUS) CONTINUED VII. Prayer for ~elief.

Whereforei premises consideredi Relator~ Samson Loynach~n~ pro se, respectfully requests a finding that the Respondent.,· in denying access to the records has abused his discretion, and violated the Relator's constitutional rights 'BS demonstrated herein, that Relator· has brought' this litigation ifi goad faith, and has substantially prevailed. Relatqr pray\;! that "tliis cour'j; grant the. lilri t, .and· order Responden.t to immediately provide Relator access to the records sought,·by either transferring them to the .unit 11e is currently in- carcerated at, or turning them directly over to him. Respectfully submitted,

12_071 .FM 3522, FRENCH ROBERTSON UNIT ·~aiLENE, J~ 7~601

VIU. CERTIFICATE OF SERVICE I hereby certify that a true copy of the above APPLICATDO~ FOR WRIT OF MANDAMUS was served on Judge Louis Sturns by placfng a copy in the U.S. Mail addressed to: Judge Lou~s

·Sturns, 213th District Court, 401 West Belknap, Fort Worth, TX, 76196, on this the ,1;7~~ day. of July, 2015.

IX. UNSWORN DECLAR-ATION Pursuant to Texas 'Civil Practice & Remedies Codes §132.001-1:32.003 the following i~

provided:' . - .. .

My name is .Samson Matthew Loynachan M~ date ot birth is 11 September, 1979, and my inmate identifying number is 1789266.· I am presently incarcerated.in the French Robertson Unit in Jone• County, Abilene, TX, 79601~ I declare undet penalty .of perjury that the forego~ng is true a!'ld_corre~

Executed on the /7z!'ey of July, 201~~- ,

(7)