Miller, Demontrell
Opinion
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.
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).
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
“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”).
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
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
contradicted by the evidence attached to the habeas corpus application, nothing in the affidavits supports the habeas court’s findings and conclusion.
Conclusion
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