Miller, Demontrell

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@smithcounty .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

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

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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).

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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

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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.

Respectfully submitted,

____________________________________

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

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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