(p3^3^-^
Date: February 23,2015
Derrick Polly HOTDOiM DEWflEI
609271
Robertson Unit
date.°3-13*15"
12071 FM 3522
Abilene, TX 79601
Abel Acosta
Clerk, Texas Court of Criminal Appeals
DECEIVED IH
P.O. Box 12308, Capitol Station COURT OF CPIMINAL APPEALS
Austin, TX 78711-2308
MAR-02 2015
RE: WR-63,637-03; Rule 79.2(d) Notion
AbelAcosia,Clerk
Dear Clerk:
Enclosed is my second Rule 79.2(d) motion in the above-referenced writ record.
I am filing this second motion to higlight that I meat all four critera under
Ex parte Moreno, to warrant reconsideration on the Court's own motion.
Please, in presenting this motion to the Court, will you please highlight
that I am focusing the Court's attention, specifically, on the four Moreno
factors, and requesting them to find that I meet each of the four factors.
Please note that my first Rule 79.2(d) motion did not highlight the four
Moreno factors, although I did cite to Moreno as grounds for reconsideration.
Thank you for your service and prompt action in this matter.
Sincerely,
jjc ^2^
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Derrick Polly
cc: file
CASE NO. WR-63,637-03
IN THE
TEXAS COURT OF CRIMINAL APPEALS
EX PARTE
DERRICK POLLY
MOTION SUGGESTING THE COURT MOVE ON ITS OWN INITIATIVE
PURSUANT TO RULE 79.2(d) TEXAS RULE'S APPELLATE PROCEDURE
TO THE HONORABLE JUDGES OF SAID COURT:
COMES NOW Derrick Polly, Pro se Movant seeking to move the court with this
suggestion, that the Honorable Court reconsider on its own initiative pur
suant to Rule 79.2(d) of the Texas Rules of Appellate Procedure its summary
denial of Claim One in this: Original Post'Conviction habeas, corpus applica
tion, in support of this instrument Movant will submit the following:
I. PROCEDURE FOR CORRECTING ERROR
Rule 79.2(d) provides a procedure for granting relief where subsequent
Supreme Court holdings demonstrates that this Court's original denial of
relief was objectively unreasonable. See Exparte Moreno, 245 S.W.3d 419
(Tex.Crim. App.2008)(rehearing and relief grant after Supreme Court clari
fied this Court's interpretation of Penry -I as being objectively unreason
able). See also Ex Parte Moussazadeh, 361 S.W.3d 684,689(Tex.Crim.App.2012)
(Concluding original decisions in Evans and Moussazadeh II "were incorrect").
II. ORIGINAL GROUND ONE
On February 19,2009, Polly filed his original 11.07 habeas application
in this case. In his Ground One, Polly alleged his trial counsel was ineff
ective by failing to convey to him all the terms of the State's plea offer,
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and counsel acted against Polly's will, and without his consent or knowledge
when counsel returned an accepted::plea offer as refused. See WR-63,637-03,
11.07 Writ'Application Page 6; also see Memorandum of Law Page 4-8.
Polly alleged the following facts:
"On 12/06/02, I informed trial counsel that I would accept the ten year plea
bargain offer the State presented. At the time counsel did not inform me that
one of the terms of the plea agreement that no counter offers would be accepted.
On 12/10/02, I was taken to court for a plea bargain sentencing hearing, right
before the hearing begin I ask defense counsel to ask the State's Attorney if
I could perserve my right to appeal with the plea agreement? Trial Counsel with
out informing me that no counter offers was one of the agreement terms took it
upon himself to return the plea agreement as refused, and announce ready for
trial. Such acts were against my will and without my consent or knowledge "
id. at £age" 6'.'
III. ORIGINAL DENIAL OF GROUND ONE '
Polly was never provided an opprotunity to develop the material facts
for ground one. This Court summarily denied the claim.
In light of the summary denial it appears this Court may have believe
it was reasonable under Strickland v. Washington, 104 S.Ct-. 2052(1984) for
defense counsel to neglect to advise Polly that his request to preserve his
right to appeal would be a rejection of the plea offer. Or this Court may
have viewed Defense Counsel Aguilar's failure to convey the no-counter offer
stipulation to be deficient under Strickland, but in light of further pro
ceedings, in which the State withdrew the plea offer, Polly could not
demonstrate the required prejudice necessary to grant relief under Strickland.
IV. SUPREME COURT'S DECISION
The United; States Supreme Court has issued two 2012 decisions in
Lafler v. Cooper, 132 S.Ct. 1376, and Missouri v. Frye, 132 S.Ct. 1399,
that demonstrates this Court's original summary denial of relief of the
ineffective assistance of counsel claim relating to the issue of a loss
plea offer due to the actions of trial counsel was an obvious and unreason-
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able denial of relief because (1) the allegations of fact supported by the
record before the Court illustrated POLLY was entitled to an evidentiary
hearing for the opportunity to prove prejudice, and (2) the Lafler Court
held, "If a plea bargain has been offeredr a defendant has the right to
effective assistance of counsel in considering whether to accept it. If
that right is denied, prejudice can be shown if loss of the plea oppor
tunity led to a trial resulting in a conviction on more serious charges
or the imposition of a more severe sentence." Id. See also Missouri v.
Frye, supra.,(noting that defense counsel must "promptly communicate
and explain" plea offers under the professional rules-in numerous jur
isdictions) Id. at 1408.
V. ARGUMENT
Polly asserts that the facts of his case present compelling circumstances
in light of the fact the Supreme Court in its 2012 rulings in Lafler v. Cooper,
132 S.Ct." 1376, and.Missouri v. Frye, 132 S.Ct. 1399, demonstrates this
Court's 2010 decision denying Polly's writ of habeas corpus application
filed pursuant to Article 11.07 of the Texas Code of Criminal Procedure
asserting a claim of ineffective assistance of trial counsel for counsel
failing to inform of all of the terms of the plea offer, specifically,
that no-counter offers would be accepted, and ancounteroffer would be
considered a rejection of the plea offer, as well as counsel .returning
the plea offer for 10. years as..: refused and announcing ready for trial
against Polly''"s will, and without his consent or knowledge was objectively
unreasonable in light of clearly established federal law.. Strickland v.
Washington, 104 S.Ct. 2052 (1984).
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Polly contends that his case fits squarely between Lafler and Frye
to fall into the boundaries of establishing compelling circumstances
as identified in Ex Parte Moreno, 245 S.W.3d 419(Tex.Crim.App.2008).
As compared, in Lafler v. Cooper, supra., the habeas petitioner ...
shot a female in her buttock, hip, and abdomen. He was charged under
state law with assault with intent to murder. A plea offer was made
twice by the State. In communicating with the trial judge Lafler
admitted guilt and expressed a willingness to accept the plea offer.
Lafler was convinced by his defense attorney to reject the offer
because trial counsel believed that the State could not proove intent
to murder since the victim had been shot below the waist. The case
went before a jury, and Lafler was convicted:;as charged, and received
a sentence' larger than what the plea offer was for. Following direct
review by the" State' appellate courts the case went before the federal
district court, to seek habeas relief for ineffective assistance of trial
counsel relating to the loss plea offer. The district court granted a
conditional writ, ordering specific performance of the original plea
agreement. The federal courtcof appeals affirmed, and the Supreme Court
granted certiorari.
Examining Lafler's claims, the Supreme Court held that Strickland
applies as clearly established law, to the rejection of a plea offer
based on deficient advise. Id. at 1390. Applying Strickland, the court
observed that the parties had stipulated that counsel's performance was
deficient. Regarding prejudice, the court held that Lafler had successfully
demonstrated prejudice by showing that "there is a reasonable probability
he and the trial court would have accepted the guilty plea under the plea
agreement."In addition, as a result of not accepting the plea and being
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convicted at trial Lafler received a sentence three times greater than
he would have received under the plea. This the court held satisified
the Strickland test for ineffective assistance during plea bargaining.
In Missouri v. Frye, Supra., the defendant was charge with a
Class D felony offense of driving with a revoked license. The prosecu
tion sent two written plea offers ;to Frye's attorney, the second of
which would have reduced the four year charge to a misdemeanor and
recommended a 90-day sentence. Defense Counsel let both offers expire
without communicating anything to Frye. Before Frye's preliminary
hearing he was again arrested for driving with a revoked license.
Frye subsequently entered a plea of guilt without a plea agreement.
The trial court sentence him to three years in prison. Id. at 1404.
Frye filed for postconviction relief in state court, alleging
that his counsel""s failure to inform him of the plea offer violated
his right to effective assistance of counsel. The trial court rejected
the claim, but the Missouri Court of Appeals reversed and granted
relief based, on Strickland. The state court ordered Frye's guilty
plea withdrawn so he could proceed to trial or agree to plead guilty
to any offer the prosecutor deemed appropriate. The Supreme Court
granted certirari. That court held defendants are entitled to effective
counsel during plea negoiations, even where a plea offer is rejected.
The Court remanded Frye's case back to the state court for it to deter
mine if Frye could show prejudice, especially in light of his intervening
arrest for the same offense while the current charges and plea offer were
pending. Id. at 1411.
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As compared, the favorable plea offer was conveyed to Lafler, Polly's
trial counsel did inform him that a plea offer for 10 years had been
made. See WR-63,637,03, Page 6; see also Memorandum of Law In Support
of Writ-Habeas corpus Application, Pages 4-8; and Court Reporter's
Record Pg. 20, Lines 12-17. Lafler indicating a willingness to accept
the plea offer, but rejected the offer on the deficient acts of counsel.
Polly having informed his trial counsel he would accept the plea offer,
(CRR. Vol.3, Pg.20) supra)'but due to counsel's deficiency of failing to
::ihform..:x,__ Polly of the no-counteroffer term within the plea offer Polly
made a counteroffer when he ask counsel on Decemeber 10,2002, minutes before
the pretrial hearing if counsel would ask the prosecutor if Polly could
preserve his right to appeal with the plea offer(see CRR. Vol.3, Pg.25)
counsel in an act of deficiency neglected to inform Polly at that time
that such request would be a rejection of the plea offer, (see CRR. Vol.8,
Pg. -70, Lines 1-25; Pg.71, Lines 1-5) See also Missouri v. Frye, supra,,
(noting that defense counsel must "promotly communicate and explain" plea
offers under the professional rules in numerous jurisdiction). Counsel as
well neglected toinform Polly that counsel was considering Polly's request
as a rejection of ths plea offer, and would be returning the plea offer as
refused (see CRR.Vol.8,Pg.70, Lines 14-25; Pg.71, Lines 1-5).
The above facts were asserted in Polly's original 11.07 habeas corpus"
application with the supporting cited records submitted-to.this Court,
however, this Court in an act of unreasonableness fail-led to find Polly'"s
trial counsel ineffective under Strickland in light of such facts which
the Supreme Court in applying Strickland's two prong test to comparable
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facts in Lafler and Frye found that under established law such facts support
a colorable Constitutional claim under the Sixth Amendment righ to effective
-assistance of counsel. Thus, this Court's 2010 decision denying Polly habeas
relief is identifible/as an unreasonable application of the Strickland v.
Washington standard.
' In Ex parte Moreno, 245 S.W.3d 419 (Tex. Crim. App. 2008), this Court
announced that absent compelling circumstances the liklihood of the Court
exercising its jurisdiction under Rule 79.2(d) is rare. However, the Moreno
Court acknowledged "habeas corpus is an equitable remedy" and "equity aids
the diligent". The Court then identified four compelling factors that Polly
asserts are present in his case and illustrate the validity of the submission
of this motion. These four factors compelled the Moreno Court to relinquish
itsr"hesitation to reconsider and grant relief in the [Moreno] case."" These
four factors being:
• Moreno objected at trial;
• Moreno raised his claim timely in an initial writ application;
• After Penry III clarified the law, Moreno renewed-his claim in a subsequent
writ application, which was dimissed as sucessive;
• Moreno then filed a motion suggesting this Court reconsider the issue from
his initial writ application on the Court's own motion under Rule 79.2(d).
See Ex parte Moreno, 2^5 S.W.3d at 428. . . .
Each of the four factors found in the'Moreno case is present in Polly's
case.
• Polly objected .at trial
The record."-reflects that defense, counsel Aguilar went before the trial
court and stated the plea offer of 10 years, had been returned as refused
by Polly. Immediately, Polly objected, informing the trial court that he
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had not refused the plea, offer. Polly explained that he had accepted the
offer and asked Aguilar to ask the State if he could preserve his right to
appeal. (CRR. Vol. 3, p. 25; Lines" 1-6)
• Polly raised his claim.in his intial application
The record;reflects that Polly raised his plea bargin claim as Claim One
in his initial application. (WR-63,637-03; Application, p. 6)
• After Lafler/Frye, Polly, renewed his claim in a subsequent application
The record reflects that Polly first renewed his ineffective counsel claim
in 2012, the very year of the Lafler/Frye decisions clarifying the correct
application of the Strickland, standard to his plea bargin claim. Like Moreno,
this Court dimissed Polly's subsequent application. .(WR-63,637-06)
• Polly filed a Rule 79.2(d) Motion in 201'3"/" :
Despite the apparant merit of Polly's claim, the record reflects that •
Polly timely presented a Rule 79.2(d) ..motion suggesting the Court reconsider
his intial writ application in light of Lafler/Frye, which the Court inexplic
ably denied without opinion- (WR-63,637-03)• Polly presented an 18 page Rule
79.2(d) motion that comprehensibly demonstrated the Court has unreasonably
applied the Strickland standard to his initial Claim One.
This second Rule 79..2(d) motion is presented to the.Court so it.may decide
whether Polly, having clearly met the four Moreno factors, has been overlooked
on the critical facts of his Claim One. See. Ex parte Moreno, 245 S.W. 3d,
at 431 (KELLER, P.J., concurring):' In the alternative, this second Pule 79.2(d)
motion is presented to demonstrate that the Court must have overlooked the
fact that Polly meets each of the four. Moreno factors, such that this Court
should "reconsider the application in order to correct what the Supreme Court
has deemed an obvious and.unreasonable error. Id., at 431.
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PRAYER
Because Polly is clearly entitled to the 10-year plea offer lost as a
result of Aguilar's ineffective assistance of counsel, because this Court
either overlooked Claim One of the initial .application, or unreasonably applied
the Strickland standard to Claim One, Polly respectfully prays the Court
will find he meets each of the four Moreno factors, and grant him reconsider
ation of his initial Claim One on the Court's own motion pursuant to Rule
79.2(d), Texas Rules of Appellate Procedure.
EXFCUTEP.this 23 of February , 20 -15 .
Respectfully submitted,
Derrick. Polly /
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