0~<.?'10--0I A T T E NT I 0 N tRitE((;IE~VlED ~N ©OORf Of CRIM1NAl APPEALS To: Abel Acosta/Clerk Court of Criminal Appeals /·JAN 09 2015 P.O. Box 12308 Austin, Tx 78711 / No. 11749:1Abe~Aoosta, Clerk Re: Santiago Olivares/Pro se TDC # 1607304 Darrington Unit 59 Darrington Rd. Rosharon, Tx 77583 Hon. Abel Acosta/Clerk, of the Court of Criminal Appeals. Presented herein is a MOTION FOR LEAVE, with a WRIT OF MANDAMUS, that concern the extreme delay of my Habeas Corpus that was filed on September 10, 2012. Relator/Applicant, will show this Honor~ able Court the requirements and necessity to be granted Mandamus relief. Relator, however, is incarcerated and Pro se, and begs this court to construe his mandamus format liberally not holding him to the standards of lawyers. Relator has tried his best to follow form and procedure. LACK OF COMPLIANCE ON MANDAMUS Petition was sufficient despite lack of complete compliance with rules governing form. See In re Taylor, 28 S.W.3d 240. RESPECTFULLY SUBMITTED ~~12&1~ Santiago Olivares/Pro se TDC # 1607304 Darrington Unit 59 Darrington Rd. Rosharon, Tx 77583 cc I HABEAS TRIAL COURT No. 1174911-A EX PARTE § IN THE COURT OF SANTIAGO OLIVARES § CRIMINAL APPEALS APPLICANT § AUSTIN, TEXAS MOTION FOR LEAVE TO FILE AN APPLICATION FOR "W R I T 0 F MAN D.A MUS" To the Hon. Abel Acosta/Clerk, of the Court of Criminal Ap- peals. Comes now Santiago Olivares, TDC inmate # 1607304, and Pro se applicant seeking leave to file a WRIT OF MANDAMUS, and in support of motion will show to wit: I STATEMENT OF FAC'I'£: On September 10, 2012, Applicant filed a writ of habeas cor- pus pursuant to Art. 11.07 of the TCCP., for post-conviction re- lief. An ORDER DESIGNATING ISSUES(ODI), was signed on September 27, 2012. The ODI failed to order trial counsel to address the claims in Applicant's 11.07, and has since been stagnant in the habeas court. II APPLICANT'S PURSUIT OF HABEAS RIGHT First, Applicant has been extremely patient with the court to review and process his habeas 11.07, knowing full well of the court being inundated with cases and habeas writs. However, it has been over two years since the ODI, and no action has been ta- ken on this 11.07. Applicant has tried an "Informal Resolution" (Exhibit A-1), that was sent to the trial court on August 17, 2014. After hearing no response, Applicant then proceeded with a cc 1 :...... ,_) ... "MOTION TO COMPEL" (Exhibit A-2), sent to the court on October 5, 2014, receiving no response or action from the court. III INEFFECTUAL PROCESS OF HABEAS CORPUS Applicant has been diligently patient in the hopes of process- ing and proceeding his ha.beas corpus 11.07. However, 2 years in holding Applicant's 11.07 with no action being taken is well be- yond a violation of AppJicant's Due process rights under habeas corpus. Applicant has tried informal(Exhibit A-1), and formal resolu- tions(Exhibit A-2), to try and reslove this issue. Applicant has also requested for help from the Assistant District Attorney(ADA), (Exhibit A-3 & A-4), who recommended the ODI to the court, with no assistance coming from the ADA. Applicant has claimed "Actual Innocence," and yet the habeas court refuses to act. Applicant's only recourse is help from this honorable court, and its duty to enforce the laws of the Texas Constitution, Art. 11.07 of the TCCP., and the Due process rights of Applicant under the United States Constitution(Please see Man- damus for State & Federal law on Habeas Corpus). P R A Y K.R·:'. WHEREFORE, PREMISES CONSIDERED, Applicant prays this Honorable Court will grant·the MOTION FOR MANDAMUS, and ORDER the habeas court to proceed with Applicant's 11.07 within 90 days of re- ceipt of the Mandamus. RESPECTFULLY SUBMITTED L~~-= Santiago Olivares/Pro se TDC# 1607304 cc 2 CERTIFICATE OF· SERVICE I hereby certify that a true and correct copy of the foregoing MOTION FOR LEAVE, has been mailed on this ~~ day of~ I 201§. To: Abel Acosta/Clerk AND ONE COPY 10: Presiding Judge Court of Criminal Appeals 337th District Court P.O. Box 12308 Capitol Station Harris County, Texas Austin, Texas 78711 1201 Franklin, 15th floor Houston, Tx 77002 Signed on this ~~ day of~, 201f. RESPECTFULLY SUBMITTED Santiago Olivares/Pro se TDCJ # 1607304 Darrington Unit 59 Darrington Rd. Rosharon, Tx 77583 cc 3 HABEAS CASE No. 1174911-A TRIAL COURT No. 1174911 In re SANTIAGO OLIVARES R E L AT 0 R v. PRESIDING JUDGE OF THE 337th DISTRICT COURT IN HIS )~'HER OFFICIAL CAPACITY R E S P 0 NDE NT P E T I T I 0 N F 0 R WR I T 0 F MA N D A MU S SANTIAGO OLIVARES/PRO SE TDCJ # 1607304 DARRINGTON UNIT 59 DARRINGTON RD. ROSHARON, TX. 77583 cc i \ IDENTIFICATION OF PARTIES AND COUNSEL Santiago Olivares TDCJ # 1607304 Darrington Unit 59 Darrington Rd. Rosharon, Tx 77583 R E L AT 0 R Presiding Judge 337th District Court Acting in His/Her Official Capacity Harris County, Texas 1201 Franklin, 15th floor Houston, Tx 77002 R E S P 0 N D E N T Santiago Olivares/Pro se TDCJ # 1607304 Darrington Unit 59 Darrington Rd. Rosharon, Tx 77583 P R 0 S E cc ii TABLE OF CONTENTS Introduction of Parties and Cover Page pg.i Identity of Parties pg.ii Table of Context pg.iii Index of Authorities pg.iv~ Statement of the Case pg .1 - SUBJECT MATTER POINT: Relator's habeas corpus (11.07), has been in trial court under ORDER DESIGNATING ISSUES for over two years, since September 10, 2012. With no action _ being taken on the writ. Statement of Jurisdiction pg.2 Issues Presented pg. 3' Statement of facts pg.4 Summary of the- Arguments pg.S Argument . pg/6,7,8 Relator's point (restated). pg .6- ~ Conclusion and Prayer pg.8 Certificate of Service pg.9 cc iii INDEX OF AUTHORITIES State Cases Page Ex parte Kerr, 64 S.W.3d 414 (CCA.2002). _pg.'7 Ex parte Ramzy, 424 S.W.3d 220 Tex.1968) pg.7 Federal Cases Barker v. Wingo, 407 U.S. at,5~1-32 .. pg. 7 Blackledge v. Allison, 431 U.S. 63, 71 (1977) . pg. 7 Davis v. Fetchel, 150 F.3d 486 pg.8 Deter v. Collins, 985 F.2d at 795 (5th Cir.1993) pg.6 Rheuark v. Shaw, 628 F.2d 297 (5th Cir.1980). pg.8 Shelton v. Heard, 696 F.2d 1127 (5th Cir.1983) .. pg.6.7 St.Jules v. Beto, 462 F.2d 1365 (5th Cir.1972) . 'pg. 7 State Code Tex. Code Grim. Proc. 11.04 pg. 7 Texas Constitution Art. 1 § 12 . pg.6 Federal Codes 28 u.s.c. § 1361 . . pg.8 cc iv STATEMENT OF THE CASE Relator filed for habeas corpus relief on September ·10, 2012. State filed its response on September 24, 2012. The Assistant Dis- trict Attorney(ADA), recognized the severity and meritorious claims that Applicant raised in his 11.07, such as "Ineffective Assistance of Counsel"; and "Actual Innocence" etc., that the ADA filed a "MOTION REQUESTING DESIGNATION'OF ISSUES" to the habeas trial court(Respondent). On September 27, 2012. Respondent in the 337th District Court signed an ORDER DESIGNATING ISSUES(ODI). j Relator request that Respondent ORDER trial counsel to ad~ , dress the allegations in Relator's habeas writ application by way of affidavit, so Relator can rebut his proposed answers and hold an Evidentiary Hearing to address the actual innocence claim. If trial counsel is unable to comply with this order; Relator request Respondent to make a ruling and recommendation to the Court of Criminal Appeals so his habeas corpus may proceed in a speedy and effectual process. Relator request this within 90 days of Respondent receiving this ORDER of Mandamus from the Court of Criminal Appeals. cc 1 STATEM~NT OF JURISDICTION The Court of Criminal Appeals has sole Authority at the State level to address the issue of Relator's complaint within its jur- isdictional power. cc 2 ISSUE PRESENTED P 0 I NT Relator's Habeas Corpus 11.07, has been in the trial court under ODI for over TWO years, since September 10, 2012, with no action being taken on the writ. This Honorable Court has the authority and power to force action to Relator's claim of Respondent taken no action in the course of review and process of his writ of habeas corpus. Relator wishes immediate actidn from this court, forcing Respondent to act. on his writ of habeas corpus in the interest of justice and fairness and the course of Due process. cc 3 STATEMENT OF FACTS Relator filed for Writ of Habeas Corpus challenging the con- stitutionality of his conviction on September 10, 2012. The state ADA, requested an ODI on September 24, 2012, which the habeas trial court(Respondent), granted on September 27~ 2012. Relator has been extremely patient with the court in the pro- cess of his habeas corpus However, 2 years with no action being taken on his 11.07 is entirely unexceptable. Relator has tried an "Informal Resolution"(Exhibit A-1), that was sent to Respondent on August 17, 2014, and after hearing noth- ing, Relator filed a "Motion To Compel"(Exhibit A-2), sent toRe- spondent on October 5, 2014, and has asked for help from the ADA who requested the ODI(See Exhibits A-3 & A-4), and has received no recourse from the ADA or Respondent. Relator and Applicant for habeas corpus only recourse to re- solve this issue, is this Mandamus. Relator will argue as follows. cc 4 SUMMARY OF THE ARGUMENTS POINT OF ARGUMENT: Relator has filed for writ of habeas cor- pus, claiming "Actual Innocence." The Respondent·has failed to abide by the TEXAS CONSTITUTION in keeping the remedy speedy and effectual. Relator has the right of this process, and Respondent has a duty to uphold this right. Two years of Relator's habeas corpus being stagnant in the trial court, with no action being taken and no responses to Re- lator's request, is a clear violation of Relator's Due proce~s rights, and the effective, speedy remedy of the Great Writ of Habeas Corpus. cc 5 ARGUMENT Relator and Applicant for Habeas Corpus(11.07), relief, mailed his writ to the trial court that was received and filed on September 10, 2012. The response from the ADA, recognized the merits of Applicant's claims and requested to the habeas court that Designation of Issues be ordered in their motion that was delivered on September 24, 2012. The Respondent, agreeing with the ADA, signed an ORDER DESIGNATING ISSUES on September 27, 2012. Relator's habeas writ has been stagnant in the trial court since September 27, 2012. No action, whatsoever, has been taken on the 11.07 for over 2 years. Relator and Applicant for habeas corpus has tried to contact the court through an "Informal Re- \_. solution"(Ex.A-1), and a formal resolution with a "Motion To Compel"(Ex.A-2), with copys sent to the ADA(Ex.A-3 & A-4), ask- ing for their assistance in processing the 11.07~ with no re- sponse or recourse from the .State or Respondent. This state process of the habeas writ has become "effica- cious." Shelton, 696 F.2d at 1128 (5th Cir.1983).This "inordi- nate delay . . in state review [is] solely attributable to in- adequate state procedure." Deter v. Collins, 985 F.2d at 795 (5th Cir.1993). The Respondent has a duty to uphold the legal process of hab- eas corpus, and 2 years of stagnation in the trial court is not what habeas corpus was designed for. The Texas Constitution Art. 1 § 12, states; "laws shall be enacted to render the remedy speedy and effectual." cc 6 } . The TCCP. Art. 11.04 states; "Every provision relating to the r writ of habeas corpus shall be most favorably construed in or- der to give effect to the remedy, arid protect the rights of the person seeking relief under it." See Ex parte Kerr, 64 S.W.3d 414, 419 (CCA.2002)("The purpose of a writ of habeas corpus is to obtain-a speedy and effective adjudication of a person's right to liberation from illegal restraint.")(Citing Blackledge v. Al- lison, 431 U.S. 63, 71, 91 S.Ct. 1621 (1977)("[T]he very purpose of the writ of habeas corpus [is] to safeguard a pe~son's free- dom from detetion in violation of constitutional guarantees.'') and Ex parte Ramzy, 424 S.W.2d 220, 223 (Tex.i968)(''the purpose of the writ of habeas corpus is to obtain a speedy adjudication of a person's right to liberation from illegal restraint"). Relator does not have any other recourse to address the sit- uation of his habeas. Relator has tried to "assert [] his speedy trial right,'' Barker v. Wingo, 407 U.S. at 531-32, with the infor- mal and formal resolutions(Ex. A-1, A-2, A-3, A-4), that Relator has sent to Respondent and the ADA. Relaior's mandamus request is the last of his state remedies to try and ~ove this habeas process that is suppose to be speedy and effectual. The Fifth Circuit has found that unexplained de- lays of two years are presumptively prejudicial. See e.g., Shel- ton v. Heard, 696 F.2d 1127, 1129 (5th Cir.1983); St.Jules v. Beto, 462 F.2d 1365, 1366 (5th Cir.1972)(Stating that seventeen month delay in state habeas court made exhaustion requi~ement m~aningless). cc 7 The delay of over two years, is of no fault of Relator/Ap- plicant, and exceeds the limits of Due process that the Fifth Circuit recognize as excessive. See e.g.-, Rheuark v. Shaw, 628 F.2d 297, 302 (1980). Relata~ believes he has established (1) a clear right to relief; (2) a clear duty by the judge to do the act requested, and (3) the lack of any other adequate [State] remedy. 28 U.S.C. § 1361. Davis v. Fecthel, 150 F.3d 486. C 0 N C L U S I 0 N Relator believes that he is entitled to Mandamus relief, and has thoroughly showed this court that he has no other remedy for his habeas corpus to proceed. P R AYE R WHEREFORE, PREMISES CONSIDERED, Relator prays for Mandamus relief from this Honorable Court. And ORDER Respondent to proceed ~orward on Relator's 11.07 within 90 days of receipt or Mandamus. RESPECTFULLT SUBMITTED Santiago Olivares/Pro se TDCJ # 1607304 Darrington Unit 59 Darrington Rd. Rosl}aron, Tx 77583 cc 8 - . CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the fore- going WRIT OF MANDAMUS, has been mailed on this Ge~ day of ~Af' , 201f. To: Abel Acosta/Clerk AND ONE GOff TO; Presiding Judge 337th District Court Court of Criminal Appeals Harris county, Texas P.O. Box 12308 Capitol Stati6n 1201 Franklin, 15th floor Houston, Tx 77002 Austin, Tx 78711 Signed on this rfZ!f. day of ~ , 201f. RESPECTFULLY SUBMITTED .L_~r2~ Santiago Olivares/Pro se TDCJ # 1607304 Darrington Unit 59 Darrington Rd. Rosharon, Tx 77 583 cc 9 \ \ A T T E NT I 0 N '\ To: Hon. Court Clerk 337th District Co~rt Ha~~is-County-, -Texas- -- f201 Franklin, 15th floor Houston, Texas 77002 Re: Santiago Olivares TDC#.1607304 Darrington Unit 59 Darrington Rd. Roshar6n, Texas 77583 Pertaining to writ of Habeas Corpus 11.07 No.1174911-A To Honorable Court Clerk, Enclosed you will find an "INFORMAL RESOLUTION" concerning the status of my 11.07. I would like you to ~BRING THIS LETTER TO THE ATTENTION OF THE COURT/JUDGE, so that he will have knowl- edge of the situation and status of the said 11.07. This let- ter__t~- _§.~lf .eJCPl-1!I1i!1:_QJ;y_._ In___the__ int_e_r_e_s t __of__jus_ti_e__e ___ &_fairnes_s_._ Your time and consideration into this matter is greatly ap- preciated. SINCERELY YOURS RESPECTFULLY SUBMITTED .L~ c?~ fJ-tr-/f Santiago Olivares/Pro se TDC# 1607304--~---- Darrington Unit 59 Darrington Rd. Rosharon, Tx 77583 cc I NO. 1174911-A EX PARTE § IN THE 337th _ SAN'rlAGQ OLIVARES ... § . DISTR-ICT COUR-'f- APPLICANT § HARRIS COUNTY, TEXAS § I N F 0 R MA L R E S 0 L UT I 0 N I · On September 10, 2012. Applicant filed a writ of Habeas Corpus pursuant to Art. 11.07 of the TOCP., for post-conviction relief. II On Septemeber 24, 2012. The Assistant District Attorney(ADA), for Harris county, ~ized the severity and meritorious claims that Applicant raised in his 11.07. Such as: "Ineffective Assistance of Counsel"; and "Actual Innocence" etc., that the ADA filed a 'Mn'ION REQUESTING DESIGNATION OF ISSUES" to the Ha~ beas trial court. III On September 27, 2012. The Presiding Judge in the ·337th pistrict Court(ha-:- beas .trial court), signed an ORDER DESIGNATING ISSUES(ODI). IV Applicant has been extremely patient in the court's process of his 11.07. However, it is approaching 2 years since the ODI, and no order has been sent to trial counsel to address Applicant's merits, nor has an order_~been ·issued for an Evidentiary Hearing to resolve Applicant's 11.07 claims. v The TEXAS OONSTTIUITON Art. 1 § 12 HABEAS OORPUS states: "laws shall be en- acted t9 rend_e_r_the_r_emedy__ speedy_and-eff ectua-1-.~As-this-Hene:r:able-eeur-t-can-------- see, Applicant's 11.07 has not been "speedy and effectual." Id., either due to oversight, misplacement, or sheer neglect. Applicant PRAYS thi's Honorable court will expedite and resolve this issue in an expedient manner. CERTIFICATE OF SERVICE ~ ~--······. I hereby certify that on this / T day of Autfvsf- <. , 2014. . v ................. I Was placed in the Darrington Prison mailing system, and forwarded to said