l declare under penalty of perjury that the foregoing is true and correct.
EXecuted on m?\i L\ 5 ZD/§ , 20 l$'
(Signature)
HIRAM MILES _ PETlTIONER (Your Name)
TEXAS coURT oF cRIMINAL AP`PEALS_ RESPONDENT(S)
MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
The petitioner asks leave to file the attached petition for a writ of certiorari ' without prepayment of costs and to proceed 'L`u forma pauperis
Please check the appropriate boxes:
Petitioner has previously been granted leave to proceed iu forma pauperis in the following court(s):
290th Judicial District Court,Bexar County Texas; 4th Court of
Aooeals,$an Antonio,Texas, U.S. District Court and 5th Circuit
leetitioner has not previously been granted leave to proceed iu forma pauperis in any other court.
Petitioner’s affidavit or declaration in support of this motion is attached hereto.
[:l Petitioner’s afiidavit or declaration is not attached because the court below appointed counsel in the current proceeding, and:
l:l The appointment was made under the following provision of law: ' , or
|:l a copy of the order of appointment is appended.
Signature) .
AFF|DAV|T OR DECLARAT|ON _ |N SUPPORT OF MOT|ON FOR LEAVE TO PROCEED IN FORMA PAUPERlS
l, Hiram Mil€S , am the petitioner in the above-entitled case. my motion to proceed iu forma pauperis I state that because of my poverty I am unable to pay
the costs of this case or to give security therefor; and l believe I am entitled to redress.
1. For both you and your spouse estimate the average amount of money received from each of the following sources during the past 12 months.
Adjust any amount that was received
In support of
weekly, biweekly, quarterly, semiannually, or annually to show the monthly rate. Use gross amounts, that is, amounts before any deductions for taxes or otherwise |ncome source Average monthly amount during Amount expected the past 12 months next month
You Spouse . You Spouse Employment $ n/a $ n/a $ n/a $ n/a' Se|f-employment $ n/a $ n/a $ n/a $ n/a |ncome from real property v $ n,/A $ n,za $ n/a $ n/a (such as rental income) lnterest and dividends $ n/a v $ n/a $ n/a $ n/a Gifts $ n/a $ n/a $ n/a $ n/a A|imony $ n/a $ n/a $ n/a $ n/a Chi|d Support $ n/a $ n/a $ n/a _$ n/a Retirement (such as social $ n/a $ n/a $ n/a $ n/a security, pensions, annuities, insurance) Disability (such as social $ n/a $ “/a $ n/a $ n/a security, insurance payments) Unemp|oyment payments $ n/a $ n/a $ n/a $ n/a Pub|ic-assistance $ n/a $ n/a $ n/a $ n/a (such as Welfare) th€r (Sp€Cify)f __Mom__ $_aso.oo_ $ n/a $ 40.00 $ n/a
Tota| monthly income: $ 40-00 $ $ 40~00 $
2. List your employment history for the past two years, most recent first. (Gross monthly pay is before taxes or other deductions.)
Emp|oyer Address Dates of Gross monthly pay Emp|oyment n/a n/a n/a $ n/a $ $
3. List your spouse’s employment history for the past two years, most recent employer first. (Gross monthly pay is before taxes or other deductions.)
Emp|oyer Address Dates of Gross monthly pay ' Emp|oyment nga n/a H/a $ n/a $ $ 4. How much cash do you and your spouse have? $ 0.00
Below, state any money you or your spouse have in bank accounts or in any other financial institution.
Financia| institution Type of account Amount you have Amount your spouse has
_n¢a__ n/a $ rl/a $ rl/a $ $ $ $
5. List the assets, and their values, which you own or your spouse owns. Do not list clothing and ordinary household furnishings
ij Home l:l Other real estate Value n 43 Value nga
|:i Motor Vehicle #1 l:l lV[otor Vehicle #2 Year, make & model n §§ Year, make & model n ga Value n/a Value n/a
E Other assets Description` n/ a
Value n ga
6. State every person, business, or organization owing you or your spouse money, and the amount owed.
Person owing you or Amount owed to you Amount owed to your spouse your spouse money M_+_ $___L,___ $_n/§___ $______ $ $__ $ 7 . State the persons who rely on you or your spouse for support Name Relationship Age n/a n/a n/a
8. Estimate the average monthly expenses of you and your family. Show separately the amounts paid by your spouse. Adjust any payments that are made weekly, biweekly, quarterly, or annually to show the monthly rate. '
You Your spouse
Rent or home-mortgage payment (include lot rented for mobile home) $ rl/a $ n/a
Are real estate taxes included? |:| Yes i:| No Is property insurance included? l:l Yes l:l No
Utilities (electricity, heating fuel,
water, sewer, and telephone) $ ______n/a $ n/§ Home maintenance (repairs and upkeep) $ nga $ ri/a Food 4 $ nga $ rl/a ClOthng $L $_n/a___ Laundry and dry-cleaning $ n ga $ nra
Medical and dental expenses $i_rlL_ $_rl[_a___
You Your spouse Transportation (not including motor vehicle payments) $ n/a $ rI/a Recreation, entertainment, newspapers, magazines, etc. $ n/a $ r1/ a
Insurance (not deducted from wages or included in mortgage payments)
Homeowner’s or renter’s $ rl/a $ n/a Life $ ri/ a $ n/a Health $ n/ a $ n/ a Motor Vehicle $ n/ a $ n/ a Other: n/ a $ $
Taxes (not deducted from wages or included in mortgage payments) (specify): n/a $ $
Installment payments
Motor Vehicle $ H/a 35 n/a Credit card(s) $ n/a $ n/a Department store(s) l n $ r1/ a $ n/a Other: 1'1/ a $ l $ Alimony, maintenance, and support paid to others $ n/a $ n/a
Regular expenses for operation of business, profession, or farm (attach detailed statement) $ n/a $ n/a
Other (specify): n/a _ $ 33
Total monthly expenses: $ n/a $ n/a
9. Do you expect any major changes to your monthly income or expenses or in your assets or liabilities during the next 12 months?
l:| Yes § No \ If yes, describe on an attached sheet.
10. Have you paid - or will you be paying - an attorney any money for services in connection with this case, including the completion of this form? ij Yes 3 No
If yes, how much?
If yes, state the attorney’s name, address, and telephone number: n/a
11. Have you paid_or will you be paying-anyone other than an attorney (such as a paralegal or a typist) any money for services in connection with this case, including the completion of this form?
i:i Yes iii No
If yes, -how much?
If yes, state the person’s name, address, and telephone number: / l'l a'
12. Provide any other information that will help explain why you cannot pay the costs of this case.
I'm not employed and do not earn money in my prison job assignment.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on: m'axi 'Ll, ,20 if
SUPREME COURT OF THE UN|TED STATES
_ HIRA" "ILES _PETlTloNER
(Your Name)
TEXAS COURT OF CRIMINAL APPEALS_ RESPONDENT(S)
ON PET|T|ON FOR A WR|T OF CERT|ORAR| TO
Court oF Criminal Appeals of Texas
(NAI\/|E OF COURT THAT LAST RULED ON MER|TS OF YOUR CASE)
PET|T|ON FOR WR|T OF CERT|ORAR|
HIRAM MILES TDCJ-CID NO. 785448
W.P. Clements Unit, 9601 Spur 591 (Address) ~
Amarillo, Texas 79107-9606 (City, State, Zip Code)
(Phone Number)
QUEST|ON(S) PRESENTED
Does The Due Process Clause Of The Fourteenth Amendment Permit The Texas Court Of Criminal Appeals To Deny Mandamus Relief On A Lower Courts Failure To Review A Pro Se Appellant's Brief Under The Anders Procedure Established
By The United States Supreme Court?
Does The Due Process Clause Of The Fourteenth Amendment Render The Mandamus Statute Unconstitutional When A State
Appellate Court Fail To Follow Its Standard Of Review? Does The Due Process Clause Of The Fourteenth Amendment
Allow Fraud On The Court By State Appellate Court Justices
In Review Of United States Supreme Court Precedent?
II.
L|ST OF PART|ES
[ ] All parties appear in the caption of the case on the cover page
[X] All parties do not appear in the caption of the case on the cover page. A list of all parties to the proceeding in the court whose judgment is the subject of this petition is as follows: `
Fourth Court of Appeals District of Texas
III.
TABE_E OF CONTENTS
oP,iNioNs BELovv ........................................................................................................ 1 JuRisolcTioN .................. __ ................................................................................................ 2 coNsTlTuTioN/\L AND sTATuToRY PRo\/isloi\is iN\/oL\/Eo .............................. 3 sTATEi\/iENT oF THE cAsE ............................................... 4 REAsoNs roa campch THE v\/RsT ......... l ................................................................. 8 coNcLusloN..-. ................. '..f ............................................................................................. 17'
BNDEX "l"O APPEND!CES
APPENDD(A - Notice from Court of Criminal Appeals of Texas, dated: March 4, 2015
APPENDD(B - Notice of Receipt By Clerk,dated: September 18,1998
l
\ APPEN[HX(; - Judgment/Opinion of the Fourth Court of Appeals, dated: March 3,1999 _
_ APPEN[NX{D - Order of the Fourth Court of Appeals,dated: July ` 20¢1998 ` _ .
APPENDD(E -Eindings of Fact,Conclusions of Law and Recommendation,Order,dated: October 4,2000
APPEND|X F
IV.
TABLE OF AUTHORITIES CITED
cAsEs ` PAcE-.'~NUMBER
Allied Chemical Corp. v. Daiflon,lnc.,
101 S;Ct.188(1980) ..................................... ..8 Anders v. California, 67 S.Ct. 738(1967) .., ............. 9,10,11,16 Bulloch v. United States, 763 F.2d at 1121
v(1Oth-Cir;1985) ......................................... 14 Carrio, Ex parte, 992 S.W.2d 486(Tex.Crim.App.1999) .... 15,16 Evitts v. Lucey, 105 S.Ct-830(1985) .................... 9 Griffin v. Illinois, 76 S.Ct.585(1956) ....... ` .......... 9 Hazel-Atlas Glass Co. v. Hartford Empire Co.r 64
997(1944) .............................................. 14 Rodriguez v. State, 4 S.W.Bd 227(Tex.Crim.App.l999) .... 8 Pennsylvania v. Finley, 107 S.Ct.1990(1987) ....... - ..... 9 Ross v. Moffit, 94 S.Ct.2437(1974) .......... . ........... 9 lSkinner@v-#Switzer,¢131tStCt.1298(2011) ................. 13
Stafford v. State, 813 S.W.2d 511(Tex.Crim,App.1991) ... 11
Stoddard v. Chambers, 43 U.S. 284,2 How.284,11 L.Ed. 269(U.S. Mo.1844) ...................................... 15
Strahan v. Blackburn, 750 F.2d 433(5th Cir.1985) ....... 16
STATUTES AND RULES
Article 4.04, Section 1, Texas Code of Criminal Procedure .............................................. 11
Article 11.07, Section 5, Texas Code of Criminal Procedure ................ -.... ......... . .................. 12
Article 5, Section 5, Texas Constitution ., .............. 11
SUPREl\/|E COURT OF THE UN|TED STATES PET|T|ON FOR WR|T OF CERTlORAR|
Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.
OP|N|ONS BELOW
[ ] For cases from federal courts:
to
The opinion of the United States court of appeals appears at Appendix the petition and is
[ ] reported at ; or, [ ] has been designated for publication but is not yet reported; or, [ ] is unpublished
The opinion of the United States district court appears at Appendix the petition and is
[ ] reported at ; or, [ ] has been designated for publication but is not yet reported; or, [ ] is unpublished
[ ] For cases from state courts;
The opinion of the highest state court to review the merits appears at Appendix __"A_ to the petition and is [ ] reported at § OI`,
[ ] has been designated for publication but is not yet reported; or, [ jdl is unpublished
The opinion of the l court appears at Appendix to the petition and is
[ ] reported at ; or, [ ] has been designated for publication but is not yet reported; or, [ ] is unpublished
JUR|SD|CT|ON
[ l For cases from federal courts:
The date on which the United States Court of Appeals decided my case was ' '
[ ] No petition for rehearing was timely filed in my case.
[ ] A timely petition for rehearing was denied by the United States Court of Appeals on the following date: , and a copy of the order denying rehearing appears at Appendix .
[ ] An extension of time to file the petition for a writ of certiorari was granted to and including (date) on (date) in Application No. _A
The jurisdiction of this Court is invoked under 28 U. S. C. §1254(1).
[ ] For cases from state courts:
The date on which the highest state court decided my case was W'_Zol§> A copy of that decision appears at Appendix _A-__.
[ ] A timely petition for rehearing was thereafter denied on the following date: , and a copy of the order denying rehearing
appears at Appendix
[ ] An extension of time to file the petition for a writ of certiorari was granted to and including _______ (date) on _ (date) in Application No. __A
The jurisdiction of this Court is invoked under 28 U. S. C. §1257(a).
CONST|TUT|ONAL AND STATUTORY PROV|S|ONS INVOLVED
Fourteenth Amendment,Section 1- United States Constitution
Section 1 All persons born or naturalized in the United States,and subject to the jurisdiction thereof,are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty,or property,without due process of law; nor deny
to any person within its jurisdiction the equal protection of the laws.
Section 1,Article 4.04, Texas Code Criminal Procedure
The court of criminal appeals and each judge thereof shall have, and is hereby given, the power and authority to grant and issue and cause the issuance of writs of habeas corpusl and in criminal law matters, the writs
of mandamus,procedendo,prohibition, and certiorari. The court and each judge thereof shall have and is hereby given, the power and authority to grant and issue and cause the issuance of such other writs as may be necessary to protect its jurisdiction or enforce its judgments.
STATEMENT OF THE CASE
On January 4,1996, Petitioner Hiram Miles, was indicted for the offense of murder committed on or about October 101 1995o (Clerk's Record Vol.I,p.7)
Jury trial commenced on March 31,1997, after a plea of not guilty, a verdict of guilty was returned on April 3,1997 and the jury assessed punishment on that same day at life imprisonment and $10,000 fine. (Clerk's Record Vol.I,p.B); (Clerk's Record Vol.II,p.l76)
A notice of appeal was timely filed on April 17,1997.
On May 18,1998, court-appointed appellate counsel, Raymond Fuch, filed a "Anders Brief In Support of Motion to Withdraw As Counsel" with the Fourt hCourt of Appeals in Appeal No.04- 97-00313-CR1'
Mr- Fuch provided Petitioner with a copy of the Ander's Brief advisig him of his right to review the record and file a Pro Se Brief raising any ground he consider has merit- Mr~ Fuchl also, informed him of the time limitation to file the brief suggesting that Petitioner request an extension of time from the Fourth Court of Appeals~
On July 9,1998, Petitioner Miles wrote the Fourth Court of Appeals asking ofr his records by motion to file his brief.
On July 20,1998, the Fourth Court of Appeals asknowledged
in a Order that Petitioner asserted his right to file a pro
se brief. This Order directed the Bexar County District Clerk
to prepare and send a full and complete duplicate copy of the Clerk's and keporter's Records for Cause Number 1996-CR-0010
to Petitioner- prpendix D: Order of the Fourth Court of Appeals dated July 20,1§98)
This Order granted an extension of time stating that "the Pro Se Brief is due on or before the 18th day of September 1998¢" see also (Appendix D)
z On September 18,1998, Fourth Court of Appeals Clerk, Mr. Herb Schaeferl acknowledged receipt and filing of the "Pro Se Appellant Brief" for the Court. see (Appendix B: Notice of Receipt By Clerk,dated September 18,1998)
After being provided with a copy of the brief,Enrico B. Vadezi the State's Attorney filed three(3) motins for extensions of time, filing its reply brief on the 19th day of January 1999»
On February 4,1999l Petitioner Miles was notified by Clerk Schaefer that the Court set a formal submission on "Briefs" for the 2nd day of March, A~D» 1999.
On MArch 3,1999, Justice Karen Angelini delivered the Opinion for the court of appeals affirming Petitioner Miles conviction by review of the brief filed by appellate counsel Mra Fuchs and the record on appeal,agreeing that the appeal is frivolous and without merit granting counsel's motion to withdraw- see (Appendix.€: Judgment/Opinion Of The Fourth Court of Appeals,dated March 3,1999)
Justice Angelini in her Opinion states "Miles has not
filed a brief»" Id»
Petitioner Miles filed his initial application for writ of habeas corpus on January 18,2000- On August 16,2000 it was denied by the Texas Court of Criminal Appeals without written order on the findings of the trial court without a hearing. See Trial Court No¢ l996-CR-OOlO-WI; Writ No. WR-46,247~Ol.
On July 31,2000, a second application for a writ of habeas corpus was filed and denied on November 8,2000 without written order based on the finding s of the trial court without a hearing. see Trial Court No¢1996-CR-OOlO-W2;Writ Not WR-46,247- 02-
On September 18,2000l a third application for a writ of habeas corpus was filed supplementing the second application by the trial court6 The trial court found that Petitioner had timely filed his pro se appellant brief pursuant to Anders v. California and recommended that relief be granted»:see(Appendix E: Pages 2-4, Findings of Fact,Conclusions of Law and Recommend- ation,oRDER)
On November 8,2000, the.Texas Court of Criminal Appeals dismissed without written order labeling the supplemental application a subsequent applicationa see (Ex parte Hiram Miles Writ No: WR-46,247~03)
On March 4,2015, Petitioner Miles filed a Petition for Writ of Mandamus and Prohibition in the Court of Criminal Appeals of Texas asking the court under the mandamus standard of review
to force the lower Fourth Court of Appeals to review the Pro
Se Appellant Brief filed pursuant to Anders va California standard of review» see (Appendix A: Notice from Court of Criminal Appeals Of Texas,dated March 4,2015)
On March 18,2015l the Court of Criminal Appeals of Texas denied without written order the Original Application for Writ of Mandamus and Prohibitionj see (Appendix A: Notice from Court
of Criminal Appeals Of Texas,dated March 18,2015)
REASONS FOR GRANT|NG THE PET|T|ON
The state court of last resortl on mandamus review, denied relief on a important federal question in a way that conflicts with relevant decisions of this Court through denial of mandamus relief, rendering the mandamus statute unconstitutional. See Gppendiz A: Notice from Court of Criminal Appeals of Texas,dated:
March 18,2015)
Mandamus Standard Of Review
Mandamus review has a universal standard of review to be applied in extraordinary circumstances. The Texas mandamus standard of review requires the
Petitioner to show:
l) A clear right to relief usually when the judicial conduct in question violates a ministerial dutyl and
2) No adequate remedy at law to redress the alleged harm
see Rodriguez v. State, 4 S.W-3d 227 (Tex.Crim.App§l999);see also Allied Chemical Corp. v. Daiflon,Inc., 101 S.Ct-188 (1980)
A Clear Right To Relief Usually When The Judicial Conduct In
Question Violates A Ministerial Duty
Petitioner Miles demonstrates in the mandamus to the Court of Criminal Appeals of Texas that he has a clear right to the
Relief sought under mandamus review.
The Equal Protection Clause and Due Process Clause of
the Fourteenth Amendment converge to require that a State's
procedure "affor[d] adequate and effective appellate review to indigent defendants," Griffin v. Illinois, 351 U»S», at 201 76 S¢Ct. 585,100 L.Ed- 891(1956)(p1ura1ity opinion)
Compare Finley with Lucey, where the U-S. Supreme Court held "the equal protection guarantee.¢»only..tassure[s] the indigent defendant an adequate opportunity to present his claims fairly in the context of the State's appellate process. see Pennsylvania v. Finleyl 481 U-S.,at 556,107 SiCt-1990,95 L.Ed.2d 539(1987)(quoting Ross v- Moffit, 417 U¢S-,at 616,94 S,Ct.2437,41 L.Ed.2d 821(1974) and Lucey's holding that "[D]ue process»..[requires] State's div to offer each defendant a fair opportunity to obtain an adjudication on the merits of his appeals Evitts v. Lucey,469 U>S;,at 405,105 SmCt.830,83 L»Ed- 2d 821(1985)(quoting Griffin,35l U.S¢lat 20,76 S.Ct.585 (plurality opinion)
The U.Sa Supreme Court mandates that "a criminal appellant pursuing a first appeal as of right [the] minimum safeguards necessary to make that appeal 'adequate and effective," established the Anders procedure to ensure that indigent defendants are afforded their right to an adequate appeal under the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the U»S. Constitution when a appointed Appeal counsel alleges that the appeal is frivolous.
-This Honorable Supreme Court of the United States, long agol established a three (3) step procedure to determine if
an indigent's appeal is wholly frivolous‘ See Anders v.
California, 386 U»S» 738 (1967) These steps are triggered when appointed appellate counsel
alleges that an appeal is frivolous and without meriti
Counsel"s Role - Appointed counsel must make a conscien- tious review of the record to decide if it presents any nonfrivolous grounds for appeal. If this review convinces appointed counsel the appeal is wholly frivolous, he must ask the court for permission to withdraw. But he must file "a brief referring to anything in the record that might arguably support the appeal" and provide the appellant with a copy of this brief- Anders,386 U.Sl
at 744
Appellant's Role - If appointed counsel files a motion to withdraw and brief complying with Anders, the court must provide the appellant with time to file a pro se brief "to raise any points he chooses..i,"Ida
_The pro se brief is the appellant's opportunity to help the court decide if the record on appeal raises any nonfrivolous ground for appeal. See (Appendix B: Notice of Receipt By Clerk,dated September 18,1998)
Court's Role - After the appellant has been given an opportunity to file a pro se brief, the court must conduct a "full examination of all proceedings, to determine whether the case is wholly frivolous." To make this determination, the court reviews the Anders brief filed by appointed counsell the record on appeal, and §§y_p£g §§ brief filed by th§ appellant. If the court establishes the appeal is wholly frivolous,it affirms the judgment»
But, if the review reveals an arguable ground for appeal, the court must appoint another attorney to assist the appellant in arguing the appeal-Id
The above procedures are a ministerial duty on part of the court of appealsl mandated by the Supreme Court of the United States and is not left to any lower courts discretion. See Anders,supra.
The Court of Criminal Appeals of Texas adopted the Anders
three (3) step procedural requirement through its decision in
lO.
Stafford v. State,813 SbW»Zd 511 (Tex.Crim¢App.1991);see also Anders v. California,386 U-S» 738(1967)
The Court of Criminal Appeals of Texas has been given the jurisdiction by the State Legislature to review mandamus on ministerial duty violations6 see Section 1,Artic1e 4.04,
Texas Code of Criminal Procdure.
Section 1,Article 4.04, TEX.CODE CRIM.PRO.,provides: The court of criminal appeals and each judge thereof shall have,and is hereby given,the power and authority to grant and issue and cause the issuance of writs of habeas corpus,and,in criminal law matters,the writs of mandamus,procedendo,prohibition,and certiorari- The court and each judge thereof shall have and is hereby given, the power and authority to grant and issue and cause the issuance of such other writs as may be necessary to_,¢~v protect its jurisdiction or enforce its judgments-
See also Article 5, Section 5, Texas Constitution
Therefore, the highest state appellate court has jurisdiction to enforce its judgment by mandamus review of the ministerial duty violation by the Fourth Court of Appeals as mandated by Stafford,$upra; Anders,supra.
After appointed counsel's filing of an Anders Brief and Motion to Withdraw and upon receipt of the Clerk‘s and Reporter's Recordsl Petitioner did not agree with counsel's finding that the appeal was frivolous and asserted his right under Anders-
Petitioner fulfilled his role as required pursuant to the Anders procedure by timely filing his "Pro Se Appellant's Brief" on September 18,1998- See (Appendix B: Notice of Receipt
By Clerk,dated September 18,1998)
11.
The Fourth Court of Appeals did not perform its judicial function prior to rendering judgment by stating in its Opinion "Miles has not filed a brief," ignoring its ministerial duty .to review the pro se brief when competent court records and notice of receipt by the FourthaCourt of Appeals Clerk certify’ otherwise. see (Appendix B: Notice of Receipt By Clerk/dated September 18,1998); see also (Appendix C:'OpinionAJudgment of the Fourth Court of Appeals,dated March 3,1999)
As a result of the Fourth Court of Appeals ministerial duty violation by not reviewing the Pro Se Brief pursuant to Anders establishes that he has a clear right to the relief sought
under the first prong of the mandamus review requirement. No Adequate Remedy At Law To Redress The Alleged Harm
Petitioner Miles pursued the mandamus standard revealing that he had no adequate remedy at law to redress the alleged harm due, in part, to the Petitioner being unable to pursue the only avenue of relief from fraud;on~the courtaand due-process¢;co of law violation whereby Section 4,Artic1e 11.07, Tex.Code Crim. Pro., does not redress the harm done to Petitioner Miles by the Fourth Court oszppeals to this date.
In addition, Section 5,Article 11.07 of the Texas Code of Criminal Procedurel "after conviction the procedure outlined in the Act shalllbe exclusive and any other proceeding shall
be void and of no force and effect in discharging‘thejprisioner¥"
12.
Therefore, Article 11.07 application for a writ of habeas corpus is the only avenue for relief from the fraudently obtained judgment by the Fourth Court of Appeals, pushing Petitioner Miles down-the mandamus road for relief.
The Court of Criminal Appeals of Texas is under a duty, even though discretionary, to review the mandamus filed against the court of appeals and grant the relief requested after the Petitioner has shown, extensively, evidence that warranted the granting of the relief requested.
According to Skinner, when courts do not adhere to and follow sLaLutes, then that statute is unconstitutional. see Skinner v. Switzer, 131 S.Ct.,.at 1298 (2011)
Petitioner in this case followed the letter of the law at each mandamus prong of review and was denied. When Your Petitioner meets every prong necessary for the Court of Criminal Appeals review of a violation of law put into effect by this High Court on the rights secured under the Fourteenth Amendment to the United States Constitution, that mandamus standard of review followed by Petitioner should be unconstitutional as
held in Skinner. ,@ 1298 Id.
Fraud On The Court
In additionl the court's denial of mandamus relief is an attempt to affirm "Fraud on the Court," where the Justices of the Fourth Court of Appeals have not performed their judicial
functions mandated by Anders - thus where the impartial functions
13.
of the court have been directly corrupted. see Bulloch v. United Statesl 763 F.2d at 1121 n.3 (10th Cir.1985)(en banc)(Quoting Hazel-Atlas Glass_Co. v. Hartford Empire Co.¢_322 U.S. 238,64 S.Ct.997,88 L.Ed.1250 (1944))
This Honorable Supremem Court of the United States has established that "The historic power of equity to set aside fraudulently begotten judgments," Hazel-Atlas} 322 U.S./at 245, 64 S.Ct.,at 1001, is necessary to the integrity of the courts, for "tampering with the administration of justice in [this] manner ... involves far more than an injury to a Single litigant.
It is a wrong against the institutions set up to protect and safeguard the public."
In this casel the Fourth Court of Appeals is tampering with the administration of justice, a right established by the U.S. Supreme Court in Anders v. California to ensure that a Petitioner’s right to an appeal is secure and not discarded by appointed counsel as frivolous when the appeal has merit.
Petitioner’s calim not only affects his appeal but the thousands of other indigent!s on appeal. When a indigent files his own pro se brief in disagreement to appointed counsel's claim that the appeal is frivolous raising nonfrivolous grounds and the Court of Appeals simply claims that the Petitioner did not file a brief when records show otherwise is "Fraud on the Court," and tampers with the administration of justice involving far more than an injury to a single litigant. Id.
lt has been determined by this High Court long ago, that
14.
"Fraud will void a judgment." see Stoddard v. Chambers, 43 U.S. 284, 2 now. 284,11 L.Ed.269 (u.s. Mo.1844)
Your Petitioner asks this Honorable High Court to hold the fraudulently obtained judgments, brought under mandamus review proceedings and ignoredl void and issue an Order directing the Court of Criminal Appeals of Texas to review and grant the
relief requested therein.
Laches Not Applicable
The Court of Criminal of Texas gives no reason for its white-card denial of the mandamus.
The only reasonable and rational cause for denying the mandamus would be the respondents asserting the defense of laches which would ultimately fail after review of the mandamus in its entirety.
In Carrio, the State in determing laches has a three (3)
prong test to prove whether it applies to the claim.
It is the burden of the State to: l) make a particularized showing of prejudice,
2) show that the prejudice was caused by the petitioner having filed a late petition,and
3) show that the petitioner has not acted with reasonable diligence as a matter of law.
The Court of Criminal Appeals explained that the type of prejudice that must be shown is prejudice in its ability to respond to the allegations in the petition. Ex parte Carrio,
992 s.W.Zd 486 (Tex.crim.App.1999)
15.
After the filing of the "Pro Se Appellant's Brief" the State's Attorney responded to the Pro Se Brief filing three (3) motions for extensions of time to answer the brief filed by Appellant.
The Fourth Court of Appeals cannot make a particularized showing of prejudice and is the only way to defeat the mandamus petition. The Court of Criminal Appeals states that "The doctrine of laches concerns prejudice, not mere passage of time. Carrio, 992 S.W.Zd at 488 n.2,3(Tex,Crim.App.l999); see also Strahan v. Blackburn, 750 F.2d at 443(5th Cir.1985)
The Fourth Court of Apppeals ministerial duty would be to review the "Appellant's Pro Se Brief and State's Brief® on file as mandated by this Honorable Court in Anders. See Anders v- California, 386 U.S. 738 (1967)
If at anyl prejudice is present in this case it would be the Appellant not being able to-take advantage of new case
law or changes in the law since the filing of his brief.
16.
Petitioner has pursued a petition for writ of certiorari seeking review of a judgment of a lower state court that is subject to discretionary review by the state court of last resort via writ of mandamus on a courts denial of an important federal question in a way that conflicts with relevant decisions of this Court's mandates in the Anders v. California procedures imposed on all State's.
The State court of last resort ignored the fraud involoved in this case as well as the U.S. Supreme Court's precedent on
review of an Anders Brief, by denying relief on mandamus review. CONCLUS|ON _
The Court of Criminal Appeals of Texas has rendered the mandamus statute unconstitutional after Petitioner met the standard.
The petition for a writ of certiorari should be granted
Respectfully submitted
maj Zl, wl angulo/mbij
Date: m®/; 'Ll_. 7_,0[3’
17.
APPENDIX
OFFlCIAL NO I`ICE FROM COURT O`r` C`RlMlNAL APPEAI S OF T EXAS
PO BOX12308 CAPlTO}- STATl_ON AUSTIN T_EXA$T 7__§711
o ritter ausixsss »__-1%1:11,5111-; 51 511 stare oi= rsxx1 s %s&l'“§§ § 51, , _ l _. ,‘,:: : . _) 117‘ " ' (’§Z!'J!`v' 8{.¥*.."~.'1;`§§ l PENALTY FQ§ zi§`g§xi:im G:_ g @@o;zi@s 3/4/2015 PRWA iii USE . ' Ui;u" .-z’§ 00 ~1 1Vv1.11111 1.115 MlLES H|RAM Tr §40..1.“1::§“3§…1{ air screw ziWRa46 2471-12
On this day the original application for writ of mandamus has been received and
presented to the Court.
HlRAl\/| |VllLES
Abe| Acosta, Clerk
CLEMENTS UN|T - TDC# 785448
9601 SPUR 591
AMAR|LLO, TX 79107-9606
- ` »1111111~1'~1ii»iii-1iim'1
)C;>/L/<:)
lhwmhmdhhmhmdmd
OFFICIAL NOTICE FROM COURT Ol CRIMINAL APPEALS OF TEXAS
P.O BOX12308,CAPITOL STATlON, AUSTIN, _;TEXAS€‘§Z‘LI ‘~;\ 493 P" "~H
oxi=:cixt susixess j sims es Texas _ 1 Peuxi.rv roe 3,18,2015 assume use
Mll_ES, HlRANl
HlRA|\/| |V||LES CLEMENTS UNIT - TDC# 785448 9601 SPUR 591
AMARILLo T>< 79107 9606 zcl >/ q©
s raise NWNWWMHMMNHM
.‘)
§ tie ass
osser/ess 111,:1- is 2015 auto Fsowi ZiPoooE :5. .;,1 WR-46, 247- 12
Abel Acosta, Clerk
HMMMWWJWWNAMFW
COURT GF APPEALS FOUR'I'H COURT OF APPEALS _DISTRICT . . 300 DOLOROSA, SUI'I'E 3200 BEXAR COUNTY CRIM]NAL .TUS'UCE CENTER SAN AN'I`ONIO, TEXAS 78205-3037 HERB SCME`ER, CLERK
"1 ‘ ]\`,/
\ \\_/
September 18, 1998
Raymond E. Fuchs
ATTORNEY AT LAW - Washington Square Bldg., Sulte 101 800 Do!orosa Street
San Antonio, 'l`X 78207
Hiram. Miles
'l'DCI-ID No. 785448 Hughes Unit
Rt. 2, Box 4400 Gatesville, 'I.`X 76597
Edward F. Shaughnessy, Ill Assistant Cr`uninal District Attorney Bexar County Justice Center
300 Dolorosa, Suite 24025
San Amonio, 'rX` 78205-3030
RE: Court of Appeals Number: 04-97-00313-CR Trial Court Case Number: 96-CR-0010
Style: Hiram Miles v. The State of Texas
Dear Counsel and Mr. Milesf.
The Pro Se Brief has this date been received and filed in the above styled and numbered cause_
Very txuly yours, HERB SCHAEFER, CLERK
// Apryl Stirling, Deputy Clerk
.cQge€i')'/€SQM
~ C@O@Mg @;&%)%€azé 4 ./:%€/’@M% @M
411-111 050
11 cl
OPINION
04-97-003 l3-CR
Hiram MHJES,
Appellant
V.
The STATE of Texas,
Appellee
From the 290th Judicial District Court, B'exar County, Texas . , Tlial Court No. 96-CR-0010 ' Honorable Sharon MacRae, Judge Presiding
Opinion by; Karen Angelini, .`I'ustice 4
Sitting: l Tom Rickhoi`f, Justice Paul W. Green, Justice Karen Angelini, Iustice
Delivered and Filed: March 3, 1999
AFFIRMED'
Hiram Miles was convicted by jury of murder and sentenced to life imprisonment Miles’
court-appointed attorney has filed a brief m which he raises two arguable points of error, but
nonetheless concludes that this appeal is frivolous and without merit Anders v. California, 3 86 U.S.
738 (1967); High v. State, 573 SWZd 807 (Tex Crim App.1978) The brief meets the
requirements of Anders.. Counsel has provided Miles with a copy of the brief and advised him of his
04~9'7-{)0313~€1§
right to review the record and tile a pro se brief Mchdls v. State, 954 S.W.Zd 83, 85 (Tex. App.-San Antonio 1997, no pet.). Miles has not filed a brief l k
t After reviewing the record and counsel’sbrief, we agree that the appeal is frivolous and Without merit 'l_`he judgment of the trial court is aflirmed, and counsel’s motion to withdraw is
granted Nichols, 954 S.W.Zd at 86. _
Tjaie»i ’intgeim, ir»»r“et~
330 NUT PUBLISH
C@OM/"f 0% M%%€@é y
iUDGMENr No. 04-97-003 l3-CR
Hiram MELES, Appellant
The STA'_E`E of Texas, Appellee
From the 290th Judicial District Court, Bexar County, Texas 'l`rial Court No. 96-CR-0010 v Honorable Sharon Macrae, Judge Presiding _
BEFORE JUSTICE RICKHOFF, IUS'I`ICE GREEN, AND IUSTICE ANGELINI
In accordance with this court’s opinion of this date, the judgment of the trial court is AFFIRMED, and the motion to withdraw as counsel is GRANTED..
sIGNED M_arch 3,’_1999. ` L/ § . - il @/u/W. MW "`~'~ 1':". _.. l '. '_ .
KAREN ANGELiNi ius'ricE '
_ iuiy 20, 1998
No. 04-97-00313-CR
v Hiram MILES, - . Appellant
The STATE of Texas, Appellee
From the 290th ]udicial District Court, Bexar County, Texas Trial Court No. 96-CR~OOlO Honorable Sharon MacRae, Iudge Presiding
ORDER
Appellant’s attorney filed an Anders brief in this appeal. Anders v. California, 386 S.W.Zd 738 (1967). Appellant has asserted his right to file a pro se brief and on Iuly 9, 1998, filed a motion to obtain a copy of the record. `. '
We therefore ORDER the District Clerk of Bexar County to prepare and send a full and complete duplicate copy of the clerl<’s and reporter’s records_for cause number 96-CR-0010 to appellant at Hiram Miles, TDCI-ID No. 785448, Route 2', Box 4400, Gatesville, 'l`X 76597. Appellant’s pro se brief is due on or before the 18th day of September, 1998. The State’s brief is due 30 days after appellant’s brief is tiled. '
lt is so GRDERED on Iuly 20, 1998.
on this 20th day of July, 1998.'
_§ \
\ .
NO. 96-CR-0010-W3
Ex -PARTE . _ § IN THE DISTRICT coURT § _ , _ _ 290TH JUDI_c_i;A_L _DISTRICT firm MILES l ` n ` " ', " ` l ns ' -" "‘-BExARV~coiJNrrr-, "iiExAS j oRi)ER
Applicant, Hiram Miles, has filed an application for post- conviction writ of habeas corpus under the provisions of article 11.07 of the Texas Code of Criminal Procedure, collaterally attacking his conviction in cause number 96-CR-0010 gee Tex. Code
Crim. Proc. Ann. art. 11.07 (Vernon Supp. 1999).
-History of the Case
On April 3, 1997, after a trial by jury, Applicant was convicted of the felony offense of murder and punishment was assessed at life imprisonment in the Texas Department of Criminal Justice Institutional `Division. The Fourth Court of Appeals affirmed applicant’s conviction in appellate cause number 04-97- OO313-CR. Applicant filed an initial application for writ of habeas corpus on January 18, 2000. The Court of Criminal Appeals denied the writ without a hearing on August-l6, 2000, under CCA number 46,247-01. Applicant filed a second application for writ of habeas corpus on July 31, 2000. (Cause Number 1996-CR-0010-W2).
This application for writ of habeas corpus was filed on September
18, 2000, and seems to supplement Applicant’s second application. . Allegations of Applicant
11 Applicant alleges that his`SiXth and Fourteenth Amendment
rights were violated under the United States Constitution because
the Fourth Court of Appeals failed to consider Applicant’s pro se
brief..
Findings of Fact
1. Applicant filed an initial writ of habeas corpus on January 18, 2000. A second application for writ of habeas corpus was filed on July 31, 2000.. The Court of Criminal Appeals denied applicant’s initial writ of habeas corpus on August 16, 2000, after Applicant filed a second application. The instant application appears to supplement his second application for writ of habeas corpus.
2. Ray Fuchs represented the Applicant on Appeal. Mr. Fuchs filed an affidavit on March 7, 2000, which was attached to the Court's order on Applicant’s initial writ of habeas corpus as Attachment II. The affidavit is also germane to the allegations raised. in the instant application for' writ, of habeas corpus. (Attachment I).
3. Mr. Fuchs filed an Anders brief with the Fourth Court of
Appeals stating that he could not find any arguable points of error. The Fourth Court of Appeals found the brief to be *sufficient under Anders vi California, 386 UiS, 738 (1967) and §igh l 'v. 'seaee, 573"s-.4w.2d 807 (Tex;crim..Ap];>}.l 1978-) .- Mr. Fuchs nsen't`.the Applicant a copy' of the brief along with an explanation of Applicant’s appellate rights and deadlines.
4. In a letter dated September 18, 1998, Fourth Court of Appeals acknowledges receiving a copy of Applicant's pro se brief. (Applicant’s Application Attachment 4).
5. On March 3, 1999, the Fourth Court of Appeals issued an opinion under appellate cause number O4-97-OO313-CR affirming Applicant’s conviction. The opinion states that Applicant did not file a pro se brief. The Fourth Court of Appeals also granted Mr. Fuch's motion to withdraw as counsel of record. The Fourth Court of Appeal issued a mandate from this opinion on May 5, 1999.
6. The Court finds that the Fourth Court of Appeals did not
consider Applicant's pro se brief.
CONCLUS ION OF LAW l. Since the instant application for writ of habeas corpus is, essence, a supplement to Applicant's second writ of habeas corpus, which was filed before the final disposition of Applicant's
initial writ of habeas corpus, it is not barred under section 4 of the article 11.7 of the Texas Code of Criminal Procedure. §ee Tex. Code Crim. Proc. art. 11.07(4) (Vernon's 2000).
'2.` The Fourth Court of Appeals opinion on the instant case fails to take into consideration Applicant’s pro se brief filed on September 18, 1998, against the reasoning of Anders v. California, 386 U.S. 738 (1967) and High v. State, 573 S.W.Zd 807 (Tex.Crim.App. 1978) and their progeny. Accordingly, Applicant has produced an unresolved fact relevant to the legality' of his confinement. The Court recommends that this writ of habeas corpus be GRANTED and the cause be remanded to the Fourth Court of Appeals so that it can take Applicant's pro se brief into consideration.
ORDERS The District Clerk of Bexar County, Texas, is hereby ordered to prepare a copy of this document, together with any attachments and forward the same to the following person by mail or the most practical means: a. The Court of Criminal Appeals Capitol Station Austin, Texas 78711 b. Hon. Susan D. Reed Criminal District Attorney
Bexar County Justice Center Bexar County, Texas 78205
c. Hiram Miles TDCJ-ID#784448 3060 FM 3514 Beaumont, Texas 77705
-Signed this 17/ day Of @? __ ... ` l 20.00_:.
JUDGE PRES IDING