Miller, Demontrell

• Court: Texas Supreme Court
• Decided: June 5, 2015
• Docket: WR-81,581-01
• Status: Published

Opinion

WR-81,581-01 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 6/5/2015 8:10:09 AM Accepted 6/5/2015 9:06:00 AM Texas Board of Legal Specialization ABEL Criminal Law ACOSTA (1991) Criminal Appellate Law (2011)CLERK

RECEIVED COURT OF CRIMINAL APPEALS 6/5/2015 ABEL ACOSTA, CLERK

To: Hon. Abel Acosta Date: June 5, 2015 Subject: Ex parte Demontrell Miller; No. WR-81,581-01

Dear Mr. Acosta:

I have received notice that, on May 20, 2015, the Court of Criminal Appeals denied the Applicant’s motion for rehearing / reconsideration in the above captioned case. Pursuant to Article 11.071 section 2 (e), I have caused a motion to be filed in the United States District Court for the Eastern District of Texas, Tyler Division, a motion requesting the appointing of counsel to represent Mr. Miller in a habeas corpus proceeding under 28 USC 2254, in federal court. A copy of that motion is attached. and I have

Certificate of Compliance and Delivery

This is to certify that: (1) this document, created using WordPerfect™ X7 software, contains 112 words, excluding those items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies with Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on June 5, 2015, a true and correct copy of the above and foregoing memo was transmitted via the eService function on the State’s eFiling portal, to Michael J. West (mwest@smith- county.com), counsel of record for the State of Texas.

Respectfully submitted,

____________________________________ David A. Schulman Attorney at Law 1801 East 51st Street, Suite 365-474 Austin, Texas 78723 Tel. 512-474-4747 Fax: 512-532-6282 eMail: zdrdavida@davidschulman.com State Bar Card No. 17833400 Case 6:15-cv-00535 Document 1 Filed 06/04/15 Page 1 of 5 PageID #: 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION

Demontrell Lamar Miller § Petitioner § § vs. § No. ________________ § Capital Case William Stephens, Director § TDCJ-CID §

Motion for Appointment of Counsel IN FORMA PAUPERIS

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Demontrell Lamar Miller (“Petitioner”), by and

through David A. Schulman, his current court-appointed lawyer

(“Movant”), and respectfully requests that new counsel be

appointed, pursuant to 18 USC § 3599(a)(2), to represent him in

a habeas corpus proceeding under 28 USC § 2254. In support of

this request, Petitioner sets forth the following:

I

Petitioner was charged by indictment with the offense of

capital murder, upon which the State sought the imposition of the

death penalty. On his plea of “Not Guilty,” Petitioner was

convicted by a jury and a death sentence was imposed. This Case 6:15-cv-00535 Document 1 Filed 06/04/15 Page 2 of 5 PageID #: 2

conviction was affirmed on direct appeal. Miller v. State, No.

AP-76,270 (Tex.Cr.App. May 23, 2012).

Following trial, Petitioner was deemed an indigent in state

district court, and his first application for post-conviction writ of

habeas corpus under Article 11.071, V.A.C.C.P. was timely filed,

by the undersigned counsel, on January 6, 2012. On April 15,

2015, the Court of Criminal Appeals of Texas denied habeas

corpus relief. See Ex parte Miller, No. WR-81,581-01 (Tex.Cr.App.

April 15, 2015). Motion for rehearing was denied on May 20,

2015.

II

Petitioner is entitled to appointment of counsel pursuant to

18 USC § 3599(a)(2). He has proceeded as an indigent, with

appointed counsel, throughout state court proceedings. He

remains indigent, and has never had his constitutional claims for

relief addressed by a federal court. He is, therefore, entitled to the

assistance of counsel in order to present those claims. See

McFarland v. Scott, 512 U.S. 849, 857-858 (1998).

2 Case 6:15-cv-00535 Document 1 Filed 06/04/15 Page 3 of 5 PageID #: 3

III

Undersigned counsel does not seek appointment, because he

represented Petitioner in the state habeas corpus proceedings.

Under Martinez v. Ryan, No. 10-1001 (March 20, 2012), Trevino

v. Thaler, No. 11-10189 (February 25, 2013), and Christeson v.

Roper, No. 14-6873 (January 20, 2015), Petitioner has the right

to raise as cause for a procedural default any ineffective assistance

by undersigned counsel in raising or failing to raise in state

habeas corpus proceedings claims of trial counsel's ineffectiveness.

For this reason, undersigned counsel might be conflicted and

should not represent Petitioner in federal habeas corpus

proceedings.

IV

The Texas Habeas Assistance and Training (“TX HAT”) project,

established by the Defender Services Committee of the Judicial

Conference to consult with and assist counsel appointed in capital

2254 cases in Texas, has been attempting to recruit qualified,

knowledgeable counsel to recommend to the Court for

appointment. Working their own contacts and with the American

Bar Association's Capital Post-Conviction Representation Project,

they are continuing to search for counsel. This motion for 3 Case 6:15-cv-00535 Document 1 Filed 06/04/15 Page 4 of 5 PageID #: 4

appointment has been deferred in the hope that such efforts would

yield a recommendation. No one has yet agreed to take the

appointment, however, so the motion has been filed. Richard Burr

of TX HAT (dick@burrandwelch.com, 713-628-3391) is the point

person on TX HAT's continuing efforts to find counsel for

Petitioner and will inform the Court of any person or firm willing

and able to take the appointment.

Prayer WHEREFORE, PREMISES CONSIDERED, Movant respectfully

requests that the Court appoint new counsel to represent

Petitioner in his habeas corpus proceeding under 28 USC § 2254.

____________________________________ David A. Schulman Attorney at Law 1801 East 51st Street, Suite 365474 Austin, Texas 78723 Tel. 512-474-4747 Fax: 512-532-6282 eMail: zdrdavida@davidschulman.com

State Bar Card No. 17833400

Attorney for Demontrell Lamar Miller

4 Case 6:15-cv-00535 Document 1 Filed 06/04/15 Page 5 of 5 PageID #: 5

Certificate of Delivery

This is to certify that a true and correct copy of the above and

foregoing Motion for Appointment of Counsel has been or will be

hand-delivered, mailed postage prepaid, or transmitted via

telecopier, or a portable document format computer document will

be transmitted via eMail, to the office of the Attorney General of

Texas, Capital Litigation Division, Attention: Katherine Hayes

(katherine_hayes@oag.state.tx.us), on June 4, 2015.

______________________________________ David A. Schulman