WR-80,826-02
COURT OF CRIMINAL APPEALS
AUSTIN. TEXAS
Transmitted 7/31/2014 12:47:42 PM
Accepted 7/31/2014 1:12:33 PM
No. WR-80,826-02 ABELAclerk
IN THE COURT OF CRIMINAL APPEALS received
COURT OF CRIMINAL APPEALS
7/31/2014
ABEL ACOSTA, CLERK
Ex parte Quirino Machin Sanchez, ) TC #CR-1624-10-J(1) AjU^-^
) 430th District Court ^
Applicant ) Hidalgo County, Texas {r1/KJ^
) £C-
MOTION FOR REHEARING and RECONSIDERATION
To the Honorable Court of Criminal Appeals:
Now comes the Applicant and moves the Court to set aside the judgment of
dismissal rendered and entered herein on the 30th day of July, 2014, and grant a
rehearing of this cause, for the following reasons, to wit: the dismissal was the result
of a legal error. Applicant states that the name of the opposing counsel in this cause
is Luis Gonzalez, whose office is at the 100 N. Closner Blvd., Edinburg, Hidalgo
County, Texas 78539.
Argument and authorities in support of this Motion for Rehearing are attached
hereto and made a part hereof.
ELECTRONIC
Respectfully Submitted,
tCDcJurnuoJce/i
Margaret Schmucker
Attorney for Defendant
Texas Bar No. 24030874
Law Office of Margaret Schmucker
2301 S. Lakeline Blvd., Suite 800-53
Cedar Park, Texas 78613
Phone:(512)236-1590
Fax:(877)465-7066
E-Mail: M.Schmucker@AppellateCourtLaw.com
CERTIFICATE OF SERVICE
I, Margaret Schmucker, attorney of record for Applicant Quirino Machin
Sanchez hereby certify that a true and correct copy of this motion and the motion for
rehearing and reconsideration together with written arguments and authorities
attached thereto have been delivered to the opposing party, Luis Gonzalez, by
posting, certified mail, to his address, 100 Closner Blvd., Edinburg, Texas, 78539,
this the 31st day of July, 2014.
Respectfully Submitted,
Margaret
irgaret Schmucker
Schm
Attorney for Defendant
ARGUMENT AND AUTHORITIES ON MOTION FOR REHEARING
Argument
The Court incorrectly held that multiples grounds have been raised on a
single page in violation of Texas Rule of Appellate Procedure 73.1.1
Authorities
It is well-settled "that the writ of habeas corpus should not be used to
litigate matters which should have been raised on direct appeal." Ex parte
Gardner, 959 S.W.2d 189, 199 (Tex. Crim. App. 1998), quoting Ex parte
Goodman, 816 S.W.2d 383,385 (Tex. Crim. App.\99\);seeExparte Groves, 571
1 Texas Rule of Appellate Procedure 73.1 provides in relevant part:
73.1. Form of Application in Felony Case (other than Capital)
(a) Prescribed Form. An application for post conviction habeas corpus relief in a
felony case without a death penalty, under Code of Criminal Procedure article
11.07, must be made in the form prescribed by the Court of Criminal Appeals in
an order entered for that purpose.
Sanchez filed his Writ Application in 2012. At that time, the September 1, 2012, version of the
Writ Application was the most current. The preliminary instructions on that form stated:
(17) Beginning on page 6, state concisely every legal ground for your claim that
you are being unlawfully restrained, and then briefly summarize the facts
supporting each ground. You must present each ground on the form application
and a brief summary of the facts. If your grounds and brief summary of the facts
have not been presented on the form application, the Court will not consider your
grounds.
If you have more than four grounds, use page 10 of the form, which you
may copy as many times as needed to give you a separate page for each ground,
with each ground numbered in sequence.
S.W.2d 888,890 (Tex. Crim. App. 1978) (habeas corpus does not lie as a substitute
for an appeal). Thus, even a constitutional claim is forfeited if the applicant had
the opportunity to raise the issue on appeal. Exparte Gardner, 959 S.W.2d at 191.
That said, an ineffective assistance of appellate counsel claim is judged
under the familiar two-pronged Strickland standard which requires proof of (1)
deficient performance by counsel and (2) prejudice to the substantial rights of the
defendant. Strickland v. Washington, 466 U.S. 668, 684-86, 104 S.Ct. 2052
(1984); Exparte Lozada-Mendoza, 45 S.W.3d 107, 109 (Tex. Crim. App. 2001).
See also U.S. Const. Amend. VI; Texas Constitution, Art. 1 § 10. In order to
satisfy the "deficient performance" prong of the Strickland standard as it relates
to an ineffective assistance of appellate counsel claim raised in a habeas
proceeding it is thus necessary to allege and prove the existence of some
underlying error of arguable or colorable merit apparent on the face of the record
which was not raised on direct appeal. Cf. Hooks v. Roberts, 780 F.2d 1196 (5th
Cir. 1973), cert, denied, 414 U.S. 1163 (1974) (to prove ineffective assistance of
appellate counsel habeas applicant must show the existence of trial errors with
arguable or colorable merit); Ex parte Miller, 330 S.W.3d 610, 624 (Tex. Crim.
App. 2009) (applicant proves ineffective assistance of appellate counsel if he
demonstrates that defaulted claim has "indisputable merit under well-settled law
and would necessarily result in reversible error").
Applicant's writ form thus properly alleged meritorious constitutional
claims which should have been raised on direct appeal but were not as a necessary
part ofhis ineffective assistance ofappellate counsel claims and not as "multiple
grounds" improperly "raised on a single page." For example, Ground Two alleges
ineffective assistance of appellate counsel for failing to assert a meritorious
procedural due process / open courts claim which should have been raised on
direct appeal and as a consequence would be deemed forfeited as an independent
claim. Ex parte Gardner, 959 S.W.2d at 191. Ground Three alleges ineffective
assistance of appellate counsel for failing to assert a meritorious Brady2 claim
which should have been raised on direct appeal and as a consequence may be
deemed forfeited as an independent claim. Exparte Gardner, 959 S.W.2d at 191.
Ground Four alleges ineffective assistance ofappellate counsel for failing to assert
a meritorious Confrontation Clause claim which should have been raised on direct
appeal and as a consequence would be deemed forfeited as an independent claim.
Ex parte Gardner, 959 S.W.2d at 191. Ground Six alleges ineffective assistance
of appellate counsel for failing to challenge the District Court's order denying
Sanchez's motion to suppress his statements to police as violating Miranda
2 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963)
5
requirements which should have been raised on direct appeal and as a
consequence may be deemed forfeited as an independent claim. Ex parte
Gardner, 959 S.W.2d at 191. Ground Seven alleges ineffective assistance of
appellate counsel for failing to challenge the District Court's refusal to suppress
evidence obtained following the unlawful stop and search of the tractor trailer
which should have been raised on direct appeal and may be deemed forfeited as
an independent claim in state habeas, Exparte Gardner, 959 S.W.2d at 191, and
would be barred from review as an independent claim in federal habeas by Stone
v. Powell, 428 U.S. 465 (1976) (Where the state has provided an opportunity for
full and fair litigation of a fourth amendment claim, a state prisoner may not be
granted federal habeas corpus relief on the ground that evidence obtained in an
unconstitutional search or seizure was introduced at his trial.) And Ground Eight
alleges ineffective assistance of appellate counsel in failing to raise a sufficiency
of the evidence claim on direct appeal which may be deemed forfeited as an
independent claim in habeas. Ex parte Gardner, 959 S.W.2d at 191.
Because Sanchez's ineffective assistance of appellate counsel claims
required him to plead and prove both the existence and legal merit of underlying
trial error not raised on direct appeal as a part of those claims, the Court of
Criminal Appeals incorrectly held that Sanchez had raised "multiple grounds" on
a single page in violation of Texas Rule of Appellate Procedure 73.1. If counsel
amends Sanchez's writ application to separate the substantive underlying claims
from the ineffective assistance of appellate counsel claims as the dismissal order
tacitly suggests should be done, then the substantive underlying claims would be
denied as forfeited without making a decision on the merits, and the ineffective
assistance ofappellate counsel claims would in turn be denied for failure to prove
the merits of the forfeited claims. The net effect of such a procedure would mean
that, Sanchez could never present his claims in a format sufficiently satisfactory
to this Court to get his ineffective assistance of appellate counsel claims
considered and decided in this Court or in the federal courts on the merits.
Conclusion and Prayer
Applicant respectfully, prays that this motion for rehearing or
reconsideration be granted, the original opinion be withdrawn and the case be
considered and decided on the merits taking into consideration Applicant's timely
filed objections to the District Courts Findings of Fact and Conclusions of Law
which were not transmitted to the Clerk of the Criminal Appeals with the Writ
Application file.
Respectfully Submitted,
Wgaret Schmucker
Attorney for Defendant
Texas Bar No. 24030874
Law Office of Margaret Schmucker
2301 S. Lakeline Blvd., Suite 800-53
Cedar Park, Texas 78613
Phone:(512)236-1590
Fax:(877)465-7066
E-Mail: M.Schmucker@AppellateCourtLaw.com
CERTIFICATE OF COMPLIANCE WITH TRAP 9.4
This document is not specifically subject to a type-volume limitation imposed by
TRAP 9.4(1). Nevertheless, counsel advises that it contains 1,400 words. This
document has been prepared in a proportionally spaced computer generated
typeface using Times New Roman in 14 point Roman type for the body of the
document and 12 point Roman type for the footnotes.
Respectfully Submitted,
lariar|j/Schmucker
Marg
Attorney for Defendant
July 31, 2014