Hall, Roderick

CASE NO.

RODERICK ANDRE HALL,
Defehdant

V.
THE sTATE oF TEXAS

COUNTY OF LUBBOCK,
Respondent

2012-436,716-€
§
§
§

31 ,M/~oz

RECE\VED \N
couRT oF cR\M\NAL APPEALS

\'-"EB 052015

Abe\ Acosia. C§\e\'k

DEFENDANT'S RESPONSE TO DISTRICT ATTORNEY'S
RESPONSE TO HIS HABEAS CORPUS AND TO
DEFENSE COUNSEL'S AFFIDAVIT

COMES NOW the defendant, Roderick Andre Hall (hereafter referred to as
defendant), respectfully moves this Honorable court in Pro Se, in response to
District Attorney Matthew D. Powell response to defendant's Writ of Habeas Corpus
Article 11.07 of the Code of Criminal Procedure and in response to defendant's
previous defense counsel Daniel Hurley's sworn affidavit.

The defendant concedes to the D.A.'s assertions that he was charged by
indictment on May 18, 2011, with the offense of possession of a controlled
substance PGl (cocaine) with intent to deliver in an amount of 400 grams or more
in a drug-free zone in Cause No. 2011-431,013.

But the defendant had no knowledge that the case was dismissed by the Court on
November 27, 2012, and that he was re-indicted by the Court on November 27, 2012
to Cause No. 2012-436,716. Because the defendant was not informed by his counsel
Daniel Hurley nor was the defendant brought Before a court and informed of the
dismissal of Cause No. 2011-431,01§ or formerly re-indicted to cause No. 2012-
436,716. Let the record reflect back to November 27, 2012, which will clearly
support defendants facual allegations, that he was not present in Court for a
dismissal or re-indictment; Texas Constitution. Article l. sec. 10 RIGHTS OF
ACCUSED IN CRIMINAL PROSECUTIONS States:

ln all criminal prosecutions the accused
shall have a Speedy public trial by an im-
partial jury. He shall have the right to
demand the nature and cause of the accusa-
tion against him, and to have a copy thereof

In addition, The United States constitution Amendment 14 sec.l last part of the

paragraph states:

nor shall any state deprive any person of
life, liberty, or property, without due
process of law; nor deny to any person
within its jurisdiction the equal protec-
tion of the laws."

In Meachum v. Fano, (1976, US) 49 L. Ed. 2d 451, 96 S. Ct. 2532, infra § 21
[a], the court indicated that a "liberty interest" may have either of the two
sources: it may originate in the Federal constitution or it may have its roots in
state law.

Counsel Daniel Hurley had a duty to make sure that his client (Roderick Hall)
rights were not violated and that defendant receive a copy of the indictment and
understand the charge, lf the defendant is not brought Before the Court and told
that his case is dismissed and that he is being re-indicted for the same charge as
well as a firearm charge, nor do counsel explain to defendant the dismissal and
re-indictment. Then how could Counsel effectively make sure that defendant
understood the charges brought against him?

Defendant respectfully direct the court's attention to the D.A.'s Exhibit-A.
The Motion To Dismiss do not explain why Cause No.2011-43l,013 is being dismissed
or why a re-indictment for Cause No. 2012-436761, nor do the re-indictment mention
the charge of a firearm. There is no mention of a Firearm or drugs or notihing,
other than his name. This is clear evidence that the defendant did not understand
the charges against him, nor did his attorney explain to him the consequences of
the charges, which are prerequisites of a valid guilty plea. Perhaps the D.A.
relies on EXhibit-H "Waiver of arraigment" for Cause No.2011-43l,031? Exhibit-H
should not be given any consideration, because it is an elaborate scheme of a
forged signature of defendant's. See Defendant's EXHIBIT-A herein this motion.
Counsel Hurley's signature is right aboved the forged signature of defendant's,
therefore he knew or should have known that that was not ;the defendant'S
signature. See EXHIBIT-B and C, to compare the signatures with the forged
signature on the D.A.'s EXhibit-H- Such a flagrant discrepancy shows the depth
that defendant's own counsel went to insure that his own client (defendant Hall)
would not have a chance of winning his case. Such flagrant discrepancy is a case
of a counsel-gone-wild. The sufficient facts which are true, demonstrate that
counsel's conduct fell below an objective standard of reasonableness or that there
is a reasonable probability that, but `for the alleged deficient conduct, the
result would have been different. Hernandez v. State, 726 S.W. 2d 53,57 (TeX.
Crim. App. 1986).

The D.A.'s State Exhibit-B titled Motion to Transfer documents and transfer
order is nothing more than an elaborate smoke screen to assist defense counsel
Hurley, by showing that Discovery motions, Suppression hearing motions and Etc
were filed under Cause 2012-436,761 which is the new charge that the defendant
supposely was re-indicted for. The`facts of the matter is that, those motions

that` were filed for the original charge Cause No. 2011-431,013 wouldn't

2.

necessarily be required, especially if the charge was upgraded to a drug and
firearm case.

The defendant respectfully direct the attention of the court to the D.A.'s
Exhibit-H, Waiver of Arraignment, Defendant did not sign the document, his
signature was forged. The defendant submits an EXhibit-A, B and C as evidence
that the signature on the D.A.'s Exhibit-H is not his signature. Nevertheless,

in Tollett v. Henderson, (1973) 411 US 258, 36 L. Ed. 2d 235, 93 S. Ct. 1602, held

that when a criminal defendant has solemnly admitted in open court that he is in
fact guilty of the offense with which he is charged, he may not thereafter raise
independent claims relating to the deprivation of constitutional rights that

occurred prior to the entry of the guilty plea, but may only attack the voluntary

and intelligent character of the guilty plea. by showing that the advice he

received from counsel was not within the range of competence demanded of attorneys

in criminal cases. Furthermore, Id. "Finding that the merits of any claim that
the accused's guilty plea had been based on incompetent advice of counsel should
first be considered by the lower federal courts, the Supreme Court remanded the
case for further proceedings." In defendant Hall's case, the advice given by his
counsel on the day he was expected to have a Trial-by-jury, "the best thing we can
'today is plea guilty and hope the judge will take that into consideration and give
you a light sentence." The defendant concedes to the D.A.'s EXhibit-E The
d Waiver of Constitutional rights. Defendant did Sign. the document listed as
Exhibit-E only under the coercion of his counsel Hurley, who was in a hurry to
dispose of the defendant's case, instead of preparing a defense. He told him,
"just sign it". Counsel Hurley didn't explain the consequences of his charge or
the range of punishment. lnfact counsel Hurley led the defendant to believe that
they were going to a Trial-by-Judge up-until the day trial was scheduled on July
8, 2014 and then on that day, telling him, he is not prepared to go to trial. Let
the’ record reflect that Counsel Hurley had not filed anything of pre-trial
significance since 2011 what is mentioned in the D.A.'s Exhibit-B Motion. to
Transfer Documents from Cause No. 2011-431,013 to Cause No. 2012-436,716-0 with
the exception of Suppression Hearing Motions which were filed January of
2013(EXHIBIT-B and B(2) of defendant's 11.07 Writ of Habeas Corpus Motion).

The defendant's response to the D.A.'s reference to defendant's assertion in
his 11.07 motion that trial counsel failed to seek suppression of the items seized
pursuant to the court's seal not on the search warrant; the affidavit does not
mention what. the police officers were looking nor the date and time of the

controlled buy `between. defendant and confidential informant(CI); and that the

3.

affidavit for search warrant was prepared by unreliable affiants;' lhe defendant
»now respondss in éspart: ' _ n n v

n 1. The defendant is a layman in the law and have very limited access to Texas
state law while he is confined in Federal custody. Therefore, defendant ask the
court to overlook any oversight of the defendant because of his handicap. The
defendant feel the obligation to clarify to the court this particular assertion.
In United` States v. Faulty, 2006 U. S. Dist. LEXIS 37141 in the Fifth circuit case
language states verbatim: "The search and arrest warrant in this case commands the
executing officer to search for the controlled substance cocaine to arrest the
defendant.- The` affidavit, of. officer Bufkin, which is referenced in and
-incorporated by the warrant, further states that "the Affiant hereby charges and
accuses that [Defendant]... isin possession of a quantity of the above listed
lcontrolled substance, namely cocaine, having the intent to deliver said controlled
substance to person or persons unknown. " Def. 's Mtn for Disclosure, Ex. A. This
is sufficient to satisfy the second requirement of the Texas Code of criminal
procedure article 15. 02, that a warrant must name the offense of which the person
to be arrested is accused. Similarly the title "Magistrate" appears beneath the
signature on the warrant, as well as on the final page of the incorporated
affidavit. ' The seal -of the Texas municipal court..." Defendant Hall contends,
even if the Affidavit for search warrant or search warrant doesn't have to bare
the seal of the court. Nevertheless, it is still defective, as will be pointed
out why in the following paragraphs; _
2.In the` defendant's EXHlBlT-A. of his 11.07 motion- the Affidavit for search
warrant looks a lot different than_the D.A.'s copy titled EXhibit-F in the D.A.'s
response to defendant's 11.07 motion. lt is not clear why there are two entirely
different versions. But what is definitely without dispute is the credibility of
the affiants.` The D. A. claims that the misconduct of officers involved with the
search warrant happened after the search is baseless. 'The main officer Brady.
Lewis and a female officer who was involved with the surveillance of defendant' s
residence that day April 7, '2011 was under investigation for corruption at the
time of the affidavit for a search warrant was submitted only Rick Maldonado was
fired after the issuance of the search warrant of defendant' s residence. Counsel
Hurley had knowledge of these corrupt cops investigations. But failed to use that
available information along with other vital information in reference to the
defective search warrant to get the evidence obtained from the search warrant

dismissed`

qnd if unsuccessful in -that respect proceed to- trial'

havlng no defense for trial at all which is the case with counsel Hurley'

3. The probable cause that the unreliable affiants used to seek a. search of
defendant's residence was that he left his residence and make a control buy with a
Cl at another location while under surveillance by two corrupted officers who were
under investigation for corruption at the time. The "marked money" and drugs that
were supposed to sold in the controlled buy has never been presented to the
Magistrate to obtain a search warrant, Therefore, there was no probable cause to
establish permission to obtain a search of the defendant's residence.

In reference to the D.A.'s assertion that Discovery motions 'were filed by
counsel Hurley and that he submitted evidence to the defense, which the D.A.
submits as Exhibit-G are all for the Cause No. 2011-431§013 which was dismissed.
There exist no Discovery motions or other motions other than two suppression
hearing motions, that were filed for Cause No.2012-436,716. The defendant's
counsel was honest about, he wasn't prepared to go to trial.

In response to the D.A.'s assumptions in reference defendant's plea being
voluntary. The defendant had been led to believe by counsel, that they were going
trial, then he abandoned on the day of the trial and he did not explain to the
defendant the consequences of his guilty plea or the sentence he was facing. he
only told him to throw himself to the mercy of the court. In such an instance
amounts to the defendant involuntary pleaing to the charges. Which invalidates
the plea because of counsel bad advice and abandonment amounted to deficient
performance.

The defendant concedes to the D.A.'s assertions that Strickland two prongs must

be met. In Strickland v. Washington, (1984) 466 US 668, 80 L. Ed. 2d 674, 104 S.

Ct. 2052, the Supreme Court announced a two-part general test or standard for
evaluating a criminal defendant's claim, under the federal constitution's Sixth
Amendment, of ineffective assistance counsel under the Strickland principles, a
defendant had to prove both (1)deficient performance, and (2)prejudice from
counsel's unprofessional errors.

However, in United States v. Cronic (1984) 466 US 648, 80 L. Ed. 2d 657, 104 S.

Ct. 2039, which. was decided on the same day as Strickland \z. Washington, the

Supreme Court (1)identified several specific situations, implicating a criminal
defendant's right to counsel, in which prejudice would ,be presumed; and
(2)determined that one such situation occurred when counsel entirely failed to
subject the prosecution's case to a meaningful adversial testing.

ln Kimmelman v. Morrison, 477 U.S. 365, 106 S. Ct. 2574, 91 L. Ed. 2d 305

(1986), a criminal defendant's attorney failed to file a motion to suppress
evidence challenging a search and seizure within the time allowed under state law.

The supreme court held that the defendant's constitutional right to effective

. ' .>
assistance of counsel was violated by his attorney' s failure to move to suppress

the evidence. Counsel Hurley didn' t file a motion to suppress until 2013, when
the case originated from April of 2011, Surely, the time allowed by the state of
Texas exceeded. >` c n

`VPrejudice"'component of test, under federal constitution1s Sixth Amendment, of
Fineffective assistancer of naccused's trial_ counsel' focuses, on question whether
counselis deficient performance renders result of trial unreliable or proceeding
fundamentally unfair; under prejudice component's case-by-case inquiry,
’unreliability or unfairness does not result if ineffectiveness of counsel does not
deprive accused of any substantive or procedural right -to which. law' entitles
accused; thus, analysis focusing solely on mere outcome determination, without
attention to whether result of proceeding was fundamentally unfair or unreliable,
is defective; in judging prejudice and likelihood.of different outcome, accused
-has no entitlement to luck of lawless decisionmaker.' l

When counsel admits that he is not prepared for trial on the day trial is

scheduled and that no plea agreement were discussed before trial and when the
counsel coerce his defendant to plea guilty by abandoning at trial time. These
factors amounts to deficient performance that prejudiced the defendant, to leaving
him no other choice but throw himself to the mercy of the court.' Had.not been for
counsel' s deficient performance, the defendant would had preferred to go to trial
and any reasonable jury would not have found the defendant guilty, considering all
the facts. especially Since the key witnesses, were corrupted police officers who '
were under investigation at the time of the commission of the crime}
RESPONSE TO COUNSEL DANIEL HURLEY'S AFFIDAVIT: n _
The following is in response to Counsel Hurley's Affidavit filed into Lubbock
County, Texas on January 21, 2015 in response to defendant Roderick Andre Hall's
Writ of Habeas Corpus 11. 07 for ineffective assistance of counsel. _The defendant
concedes to paragraph one only of Counsel Hurley' s affidavit.
The defendant contest_the all other paragraphs in Counsel Hurley's affidavit and
hope trust that this Honorable Court after.review of all the facts will exercise
its prudent judgement in decided this matter before the court.

The defendant Roderick Andre Hall states the following in response to the affidavit:'

: Counsel Daniel Hurley in the second paragraph of his affidavit admits that on the
'day the trial was schedule to begin on July 8, 2014, "We were set for a bench
trial where all issues including any Fourth Amendment violations were going to be

`“*presented to the court. " w "

Counsel Hurley's admission gives credence to defendant's assertion that his
counsel led him to believe he was preparing for trial (trial-by-Judge) and that at
no time did they discuss the issue of pleading guilty. In addition Counsel Hurley
admission to the above, give credence to the defendant's verbatim quote of Counsel
Hurley saying, "I'm not prepared for trial." Because had counsel been prepared
for trial, he would had filed several pre-trial motions. As far as defendant
know, none was filed, other than 2 suppression hearing motions in January of 2013
under Cause No. 2012-436,716.

Paragraph 7 Counsel Hurley claimed he received all necessary discovery through
the District Attorney'S office is an indication of counsel misunderstanding of the
law. Because if he did, he would have requested in Discovery the "marked money"
and "drugs" that were allegingly used in the so-called control buy that officer
Rick Maldanado and Officer Brady Lewis based their probable cause to obtain a

search of the defendant's residence.n Martinez-Macras, 810 F. Supp. 782, 786 (W.D.

Tex. 1991) The fifth circuit stated; "Counsel's errors with the jury instructions
were not a strategic decision to forego one defense in favor of another. They
were the result of a misunderstanding of 1aw."

Paragraph 9 is in total contradiction to paragraph 27 Where counsel Hurley
admits, "we were set for a bench trial..."(On July 8, 2014) just as defendant
alleged in his 11.07 motion. He wasn't expected to plea guilty, he was expecting
to attend a trial with an attorney defending him, The contradiction in paragraph
9 he states, "1 deny that l failed to discuss the possible plea bargain with Rod
Hall until July 8, 2014.

Paragraph 11 is not true. Counsel Hurley never went over the indictments with
the defendant. If the defendant would had knew that he was charged for a firearm

he would had insisted of a trial, cause they were legal.

CERTIFICATE OF SERVICE

1, Roderick Andre Hall, the defendant in Pro Se, hereby certify under the penalty
of perjury, swear that the original of The Response to the District Attorney's re-
sponse and Response to Counsel Daniel Hurley's affidavit was mailed pre*postage
paid to the 364th District Court in Lubbock County, Texas and one copy mailed to
the District Attorney's office c/o Mr. Matthew D. Powell and a copy mailed to
Criminal TeXas Court of Appeals on February 1, 2015.

.1900 Simler Av .
Big Springs, TX. 79720

" AFFIDAVIT IN suPPoRT

I Roderick Hall the defendant in case no. 2012- 436, 716 swear under the penalty
of perjury to the following facts mentioned below:
The District Attorney' s Exhibit-H "Waiver of_Arraignment" is not my signature

and I am willing-to take a polygraph test to prove that it is not my signature.

Also, my~attorney Daniel Hurley never showed that Waiver of arraignment or adviced

me to wave my arraignment-

I, Roderick Hall, `am-the affiant/defendant and ishpresently`incarcerated in
Big Springs Low security federal Prison, declare under the penalty of perjury
that, according to my belief, the facts stated in the above application are

true and correct.

reg #46415-1
1900 Simler Ave.
Big Springs,_Tx. 79720

-Signed February 2, 2015

EXHIBIT-A

one page of one page

PETITIONER'S INFORMATION
Petitioner'erame: Roderick Hall
State Bar Number: N/A_
_Address: Daniel Hurley
` 1805 13th Street '

~. Lubbock, TX 79403_
Phone} 806-771-0700u y
INMATE bEcLARArloN

I, Roderick Hall, am Petitioner and being Present1y lncarcerated in
the Federal Correctional lnstitution at Big Spring, 1900 Simler Avenue Big
Spring, TX 79720, Declare under Penalty of Perjury that, according to my

belief, the facts stated in ithe' above application are true and correct.

. / . ' »,,,
\d'_¢ 4£
/fetitloner;§%§:gnature

' EXHIBIT:~B

Rr; 2012¢13§, 716

Dear Clerk,_` § q

Piease find enclosed a notice of 11.07 which 1 request to be filed and

forwarded to the court of appea1s in Amarillo, Texas, on the`basis of "In~

El

e;fective Assistance of Counse]_ " Harrington v, Rj_chter, 31 S. CT. 770 (2011)

where as in Ri chter who requested to the attorney summon to court the "expert

wi|;ness'” to determine the "blood" that was found at the crime scene.

However, since the defense attorney failed to do such it created the
form of failure to provide adequate treatment to client and the case'was
remanded to it' s district court. Needless to say, such acknowledgement of
such consi_st of in the 11 07 '

~.

Thanking you in advance for your time and consideration in this matter.

EXHIBIT~C