WR-81,581-01 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 4/24/2015 9:03:01 AM No. WR-81,581-01 Accepted 4/24/2015 9:10:09 AM ABEL ACOSTA CLERK IN THE COURT OF CRIMINAL APPEALS OF TEXAS, AT AUSTIN RECEIVED COURT OF CRIMINAL APPEALS 4/24/2015 Ex parte Demontrell Miller ABEL ACOSTA, CLERK Applicant
On Petition for Post-Conviction Writ of Habeas Corpus Pursuant to Article 11.07 § 3, et seq., C.Cr.P., in Case No. 241-1251-08 in the 241st District Court of Smith County
Motion for Rehearing
TO THE JUDGES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW, Demontrell Miller, Applicant, by and through
David A. Schulman and John G. Jasuta, his undersigned
attorneys of record, and respectfully files this motion for rehearing,
and would show the Court:
Procedural History
Applicant was convicted of capital murder and a death
sentence was imposed. On December 8, 2009, the habeas court
appointed the undersigned to represent Applicant in a post-
conviction proceeding under Article 11.071, C.Cr.P. On January
6, 2012, after completing a thorough investigation, the undersigned filed the habeas corpus application required by the statute.
In the habeas corpus application, the undersigned raised five
separate and distinct claims on Applicant’s behalf:
1. Applicant was Denied Due Process When the State Improperly Invoked “The Witness Rule,” Which Effectively Excluded Thirty-Three of Applicant’s Friends and Family Members from the Courtroom.
2. Applicant was Denied Due Process and the Effective Assistance of Counsel Under the Sixth Amendment When the Trial Counsel Either Assisted the State’s Efforts to Improperly Invoke “The Witness Rule,” Which Effectively Excluded Thirty-Three of Applicant’s Friends and Family Members from the Courtroom, or, at a Very Minimum, Took No Steps to Prevent the State from Doing So.
3. Applicant Was Denied the Effective Assistance of Counsel When Trial Counsel Failed to Adequately Prepare a Case in Mitigation of the Death Penalty and/or Prepare Any Real Defensive Punishment Theory.
4. Applicant Was Denied Due Process by the “10-12” Rule of Article 37.071 § 2(d)(2) and § 2(f)(2), Texas Code of Criminal Procedure.
5. Applicant’s Rights under the Eighth and Fourteenth Amendments to the U.S.’ Constitution Are Violated By Texas’ Death Penalty Scheme, as the Jury’s Assessment of the Death Penalty is Not Truly Subject to Judicial Review.
Over the next nearly three years, the undersigned made
numerous requests for discovery and for an evidentiary hearing.
2 The habeas court refused to provide Applicant with the
opportunity to prove his claims. Then, on September 24, 2014,
the habeas court entered is findings of fact and conclusions of law,
recommending that this Court deny relief. On April 15, 2015, this
Court denied Applicant habeas corpus relief “upon the trial court’s
findings and conclusions and our own review.”
Arguments in Favor of Reconsideration
The undersigned is fully aware that this Court has denied
claims exactly like or similar to the claims Applicant raised in the
fourth and fifth grounds for relief. He asserts, however, that those
must be included if they are ever to be asserted in federal court,
and that the fact that they have been overruled time and again is
of no importance, as the Supreme Court can and sometimes does
do a complete turn about on important issues, and if they have
not been properly raised and exhausted, such claims are waived,
even though the Applicant might otherwise be entitled to relief.
See Sunal v. Large, 332 U.S. 174 (1947).
3 I
As to Applicant’s first three claims for habeas corpus relief,
the undersigned asserts that each includes “previously unresolved
factual issues material to the legality of the Applicant's
confinement.” Consequently, and with all due respect, the
undersigned suggests that the Court’s decision to adopt the
habeas court’s findings and conclusions is in error.
For example, the affidavit of trial counsel, Melvin Thompson
provided to the State and filed on August 20, 2012, conflicts with
the affidavit he personally provided to Applicant dated January 4,
2012. Additionally, the affidavit Luanda Lacey provided to the
State is contradictory both Mr. Thompson’s affidavit and is totally
incongruent with the factual allegations set out in the numerous
affidavits submitted with the habeas corpus application.
II
In Applicant’s first ground for relief, he claimed, pursuant to
Waller v. Georgia, 467 U.S. 39, 46 (1984), and Presley v.
Georgia, 558 U.S. 209 (2010), that the State improperly invoked
4 “the Rule,”1 which effectively excluded thirty-three of Applicant’s
friends and family members from the courtroom, all of whom were
supporters of Applicant. In his second ground for relief, he
claimed that trial counsel was ineffective when he either assisted
the State's efforts to improperly invoke the Rule, or, at a very
minimum, took no steps to prevent the State from doing so.
In support of his claim that he was denied due process and
the effective assistance of counsel by the improper exclusion of his
supporters from the courtroom during his trial, Applicant
respectfully recommends the decision of the Fourth Court of
Appeals in Cameron v. State, 415 S.W.3d 404 (Tex.App. - San
Antonio 2013). In Cameron, the Court of Appeals held that,
because members of the defendant’s family were excluded from the
courtroom during preliminary voir dire proceedings, the
defendant’s constitutional rights were violated, and the defendant
was entitled to a new trial.
Subsequently, in Cameron v. State, PD-1427-13
(Tex.Cr.App. October 8, 2014), this Court determined that the trial
1 See Rule 614, Tex.R.Evid. (“Exclusion of Witnesses”).
5 court was, in fact, closed at a critical stage at the proceedings.
Because the trial court had not made findings which would
“support a legitimate overriding interest for this closure,” the
Court affirmed the Court of Appeals’ decision and remanded the
case for a new trial. Nothing less is due here.
While there appears to be a dispute regarding how many of
Applicant’s supporters were excluded from the Court, the
allegation in the habeas corpus allegation, that a significant
number of Applicant’s supporters were excluded by either the
action of the trial court or the State of Texas, or both, should be
sufficient to warrant a hearing. In truth, the constitutional
underpinnings of the cases regarding exclusion of supporters from
the courtroom has nothing to do with the number of persons
excluded from that court room. Presley, 558 U.S. at 210,
concerned the exclusion of one person. Any dispute as to the
number excluded by use of the Rule is irrelevant to the
constitutional issues presented. The allegation, and the proffered
proof, is certainly sufficient, in and of itself, to demonstrate that
6 there are “previously unresolved factual issues material to the
legality of the Applicant's confinement.”
III
Finally, in Applicant’s third ground for relief, Applicant
claimed, pursuant to Wiggins v.
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WR-81,581-01 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 4/24/2015 9:03:01 AM No. WR-81,581-01 Accepted 4/24/2015 9:10:09 AM ABEL ACOSTA CLERK IN THE COURT OF CRIMINAL APPEALS OF TEXAS, AT AUSTIN RECEIVED COURT OF CRIMINAL APPEALS 4/24/2015 Ex parte Demontrell Miller ABEL ACOSTA, CLERK Applicant
On Petition for Post-Conviction Writ of Habeas Corpus Pursuant to Article 11.07 § 3, et seq., C.Cr.P., in Case No. 241-1251-08 in the 241st District Court of Smith County
Motion for Rehearing
TO THE JUDGES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW, Demontrell Miller, Applicant, by and through
David A. Schulman and John G. Jasuta, his undersigned
attorneys of record, and respectfully files this motion for rehearing,
and would show the Court:
Procedural History
Applicant was convicted of capital murder and a death
sentence was imposed. On December 8, 2009, the habeas court
appointed the undersigned to represent Applicant in a post-
conviction proceeding under Article 11.071, C.Cr.P. On January
6, 2012, after completing a thorough investigation, the undersigned filed the habeas corpus application required by the statute.
In the habeas corpus application, the undersigned raised five
separate and distinct claims on Applicant’s behalf:
1. Applicant was Denied Due Process When the State Improperly Invoked “The Witness Rule,” Which Effectively Excluded Thirty-Three of Applicant’s Friends and Family Members from the Courtroom.
2. Applicant was Denied Due Process and the Effective Assistance of Counsel Under the Sixth Amendment When the Trial Counsel Either Assisted the State’s Efforts to Improperly Invoke “The Witness Rule,” Which Effectively Excluded Thirty-Three of Applicant’s Friends and Family Members from the Courtroom, or, at a Very Minimum, Took No Steps to Prevent the State from Doing So.
3. Applicant Was Denied the Effective Assistance of Counsel When Trial Counsel Failed to Adequately Prepare a Case in Mitigation of the Death Penalty and/or Prepare Any Real Defensive Punishment Theory.
4. Applicant Was Denied Due Process by the “10-12” Rule of Article 37.071 § 2(d)(2) and § 2(f)(2), Texas Code of Criminal Procedure.
5. Applicant’s Rights under the Eighth and Fourteenth Amendments to the U.S.’ Constitution Are Violated By Texas’ Death Penalty Scheme, as the Jury’s Assessment of the Death Penalty is Not Truly Subject to Judicial Review.
Over the next nearly three years, the undersigned made
numerous requests for discovery and for an evidentiary hearing.
2 The habeas court refused to provide Applicant with the
opportunity to prove his claims. Then, on September 24, 2014,
the habeas court entered is findings of fact and conclusions of law,
recommending that this Court deny relief. On April 15, 2015, this
Court denied Applicant habeas corpus relief “upon the trial court’s
findings and conclusions and our own review.”
Arguments in Favor of Reconsideration
The undersigned is fully aware that this Court has denied
claims exactly like or similar to the claims Applicant raised in the
fourth and fifth grounds for relief. He asserts, however, that those
must be included if they are ever to be asserted in federal court,
and that the fact that they have been overruled time and again is
of no importance, as the Supreme Court can and sometimes does
do a complete turn about on important issues, and if they have
not been properly raised and exhausted, such claims are waived,
even though the Applicant might otherwise be entitled to relief.
See Sunal v. Large, 332 U.S. 174 (1947).
3 I
As to Applicant’s first three claims for habeas corpus relief,
the undersigned asserts that each includes “previously unresolved
factual issues material to the legality of the Applicant's
confinement.” Consequently, and with all due respect, the
undersigned suggests that the Court’s decision to adopt the
habeas court’s findings and conclusions is in error.
For example, the affidavit of trial counsel, Melvin Thompson
provided to the State and filed on August 20, 2012, conflicts with
the affidavit he personally provided to Applicant dated January 4,
2012. Additionally, the affidavit Luanda Lacey provided to the
State is contradictory both Mr. Thompson’s affidavit and is totally
incongruent with the factual allegations set out in the numerous
affidavits submitted with the habeas corpus application.
II
In Applicant’s first ground for relief, he claimed, pursuant to
Waller v. Georgia, 467 U.S. 39, 46 (1984), and Presley v.
Georgia, 558 U.S. 209 (2010), that the State improperly invoked
4 “the Rule,”1 which effectively excluded thirty-three of Applicant’s
friends and family members from the courtroom, all of whom were
supporters of Applicant. In his second ground for relief, he
claimed that trial counsel was ineffective when he either assisted
the State's efforts to improperly invoke the Rule, or, at a very
minimum, took no steps to prevent the State from doing so.
In support of his claim that he was denied due process and
the effective assistance of counsel by the improper exclusion of his
supporters from the courtroom during his trial, Applicant
respectfully recommends the decision of the Fourth Court of
Appeals in Cameron v. State, 415 S.W.3d 404 (Tex.App. - San
Antonio 2013). In Cameron, the Court of Appeals held that,
because members of the defendant’s family were excluded from the
courtroom during preliminary voir dire proceedings, the
defendant’s constitutional rights were violated, and the defendant
was entitled to a new trial.
Subsequently, in Cameron v. State, PD-1427-13
(Tex.Cr.App. October 8, 2014), this Court determined that the trial
1 See Rule 614, Tex.R.Evid. (“Exclusion of Witnesses”).
5 court was, in fact, closed at a critical stage at the proceedings.
Because the trial court had not made findings which would
“support a legitimate overriding interest for this closure,” the
Court affirmed the Court of Appeals’ decision and remanded the
case for a new trial. Nothing less is due here.
While there appears to be a dispute regarding how many of
Applicant’s supporters were excluded from the Court, the
allegation in the habeas corpus allegation, that a significant
number of Applicant’s supporters were excluded by either the
action of the trial court or the State of Texas, or both, should be
sufficient to warrant a hearing. In truth, the constitutional
underpinnings of the cases regarding exclusion of supporters from
the courtroom has nothing to do with the number of persons
excluded from that court room. Presley, 558 U.S. at 210,
concerned the exclusion of one person. Any dispute as to the
number excluded by use of the Rule is irrelevant to the
constitutional issues presented. The allegation, and the proffered
proof, is certainly sufficient, in and of itself, to demonstrate that
6 there are “previously unresolved factual issues material to the
legality of the Applicant's confinement.”
III
Finally, in Applicant’s third ground for relief, Applicant
claimed, pursuant to Wiggins v. Smith, 539 U. S. 510 (2003);
Coble v. Dretke, 444 F.3d 345 (5th Cir. 2006); and Williams v.
Taylor, 529 U.S. 362 (2000), that he was denied the effective
assistance of counsel at the punishment phase. In support of this
claim, Applicant presented numerous affidavits and a substantial
amount of documentary evidence. As with Applicant’s second
ground for relief, it is clear the affidavits and documentary exhibits
provided in support of Applicant’s habeas corpus application call
into question the very idea that trial counsel conducted any sort
of meaningful mitigation investigation or introduced anywhere
near the appropriate amount of evidence during the punishment
phase of the instant trial.
The evidence presented by Applicant (attached to the habeas
corpus application) demonstrates a failure to investigate and/or
prepare a case in mitigation. Not only are trial counsel’s affidavits
7 contradicted by the evidence attached to the habeas corpus
application, nothing in the affidavits supports the habeas court’s
findings and conclusion.
Conclusion
The habeas court’s findings and conclusions are not
supported by the record, unless ignores the contradictions in the
affidavits and the documentary evidence. In this death penalty
case, there are previously unresolved factual issues material to the
legality of the Applicant's confinement, and such issues as those
presented require resolution through a courtroom exchange. The
habeas court’s findings and conclusions are unsupported in fact
and unsupportable in law. They should have been, and should
be, rejected. Absent a full factual exploration of the facts and
circumstances giving rise to Applicant grounds for habeas corpus
relief, the material facts at issue remain unresolved.
Prayer
WHEREFORE, PREMISES CONSIDERED, Applicant and the
undersigned respectfully pray that the Court will reconsider its
action of April 15, 2015, on its own initiative, vacate its written
8 order of that date, and remand the case for a live evidentiary
hearing, so that Applicant may have the opportunity to prove the
claims made in his habeas corpus application.
Respectfully submitted,
_______________________________ ________________________________ John G. Jasuta David A. Schulman Attorney at Law Attorney at Law Post Office Box 783 Post Office Box 783 Austin, Texas 78767-0783 Austin, Texas 78767-0783 lawyer1@johngjasuta.com zdrdavida@davidschulman.com Tel. 512-474-4747 Tel. 512-474-4747 Fax: 512-532-6282 Fax: 512-532-6282 State Bar No. 10592300 State Bar Card No. 17833400
Attorneys for Demontrell Miller
9 Certificate of Compliance and Delivery
This is to certify that: (1) this document, created using
WordPerfect™ X7 software, contains 1,441 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
April 24, 2015, a true and correct copy of the above and foregoing
“Motion for Rehearing” 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.
______________________________________ David A. Schulman