"··
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
Ex parte, §
Emzy Lorenzo Miller
§ Cause· No. WR-53,571-09
RECE~VED IN
§
·
SUGGESTION THAT THE COURT RECONSIDER COURT OF CRIMINAl APPEALS
ON ITS OWN MOTION THE DISMISSAL OF
THE SUBSEQUENT APPLICATION FOR WRIT FEB 26 2015
OF HABEAS CORPUS
To The Honorable C6urt Of Criminal Appeals~ Abe: Acosta, Clerk
Emzy Lorenzo Miller, Miller, files this Suggestion That
The Court Reconsider On Its Own Motion The Dismissal Of The
Subsequent Application For Writ of Habeas Corpus, pursuant to
Rule 79.2(d) of the Texas Rules of Appeallate Procedure(TRAP).
I.
PROPOSED SHOWING
Miller proposes to show the Court that it dismissed
his habeas corpus application without written order under .Tex~s
Code of Criminal Procedure(CCP), Art. 11.07, §4(a)-(c), on Octo-
ber 8,2014, and that it should reconsider that decision on its
own initiative for the following reasons:
(1) Subsequent habeas applications are governed by Art.
11.07, §4, which was enacted in response to Schlup v.
Dele and therefore becoming a liberty interest to applic-
ants, protected by their 14th Amendment right to due
process;
(2) Miller raised a Schlup-tYpe actual innocnece claim,
wherein he presented new evidence that demonstrated
3 constitutional violations that probably resulted in
the conviction of one actually inoccent,· yet the Court
clearly made a decision based on an unreasonable applica-
tion of the facts and that was contrary to u.s. Supreme
Court ,Law;
(3) Miller rai~ed a void judment claim predicated on new
evidence demonstrating that his 5th Amendment right
to collateral estoppel was vioYated, yet the Court made
a decisio~ based on an unreasonable application of the
facts and that was contrary to u.s. Supreme Court law;
(4) The Court failed to conduct a pr6per revie~ pursuant
to Section 4, instead relying upon Findings of Fact
that failed to. address Section 4 subsequent standards
and that lacked Conclusions of Law altogether;
(5) Mille~'s habeas application was accompanied by a demonst-
ration that failure to review merits would result in
a fundamental miscarriage of justice, yet the Court
failed to review the application under Sawyer v. Whitley,
and Schlup precedent, thereby rendering a decision that
was contrar~ to Supre~e Court Law.,
All the evidence that Miller relies upon in this Sugges-
1.
tion exists in this Court's records.
II.
STANDARD OF REVIEW
TRAP, Rule 79.2(d) states in pertinent part:
"A motion for rehearing an order that
denies habeas corpus relief under Code
of Criminal Procedure, Art. 11.07 or 11.071
may not be filed. The Court may on its
own initiative reconsider the case."
Rule 79.2(d) unambiguously directs state habeas petition-
ers not to file motions for rehearing. However, the CCA has
entertained motions for reconsideration, notwithstand~ng the
language in 79.2(d). See Ex parte Graham, 853 s.w. 2d 565(Tex.Cr.
App.l993); Ex parte Smith, 977 S.W. 610(T~x.Cr.App/l998)~en bane);
:Ex parte Lemke, 13 s.w. 3d 79l(Tex.cr.App.2000). In Graham, after
the cca denied state habeas peitioner's application for relief,
the petitioner filed a motion requesting reconsideration of
the Court. @566. The Co~rt, citing 213{b) agreed to reconsider
its denieal, though stating that it did so on its "own motion."
Similarly, in Smith, the CCA dismissed an application for
post-conviction habeas relief. @610. The petitioner filed a
"Suggestion ·For Reconsideration", which the tourt reconsidered
before rejecting. In Lemke, a state habeas petitioner filed
a "Motion For Reconsideration(On The Court's Own Motion) Of
The Refusal To Grant Relief In Application For Writ of Habeas
Corpus." @793. The Court gran ted the · motion and filed and set
the application for submission.
Therefore the Texas Court has provided state habeas
peitioners with the hope that a motion or suggestion for reconsi-
deration may be successful. "Meanwhile, no cases habve been
found where Texas Courts have held that 213(b) of TRAP," which
was superceded by 79. 2 (d), "does not pecmi t the f i 1 ing of a
motion for reconsideration." Emecson v. Jophnson, 243 F.3d 931,935
(5thCir.2001).
III.
REASONS FOR """REcONSIDERATION
(l) Art. 11.07, §4 And Schlup
The subequent application provisions in Act. 11.07 were
enacted in response to Schlup v. Dele, 513 u.s. 298,115 s.ct.
851, which held that the fedecal habeas petitioner must show
that a constitutional violation "more likely than not'' resulted
in the conviction of an innocent person. Ex pacte Brooks, 219 s.
W. 3d 396(Tex.Cr.App.2007).
While the text of §4(a)(2) does not specifically state
that the applicant must make a prima facie claim of actual inno-
cence, rather, all that is necessary is a prima facie showing
of actual innocence, sufficient ta overcome Section 4, so that
we can then consider the merits of his claim will be considered.
"It is not necessary for an applicant to prove his innocence,
2.
rather, all that is necessary is a prima facie showoing of actual
innocence, sufficient to overcome S~ction 4, so that we can
then consider the merits of the claim." Brooks@400.
The CCA has consistently held that the purpose of the
subsequent writ provisions is to provide review only in those
cases where the legal basis for the claim was previously unavail-
able, or to remedy a miscarriage of justice.
Miller's application claims (l)that new evidence demonstr-
ates that his judgment of murder was void under Texas law due
to a violation of his 5th Amendment right to collateral estoppel;
and (2)that new evidence demonstrates 3 const{tutional violations
during the course of his prosecution that probably resulted
inthe conviction of one actually innocent.
Both of Miller's claims are predicated on the newly disco-
vered evid~nce of Tanisha A. Cleveland's(Cleveland) pleah-hearing
transcripts and post-judgment records. By Texas statute and
CCA precedent, this Court has a very specific procedure in how
to deal with subsequent writ applications. Because Miller alleged
a void judgment due to a u.s. Constitutional violation and actual
innocence due to U.S. Constitutional errors, his claims are
Federal constitutional claims and this ·court's procedures are
emulations of Federal law, thus the resolution of these claims
must conform to U.S. Supreme Court law. Failure of this Court
in this regard w~uld result in a violation of Miller's 14th
Amendment right to due process.
(2) Prima Facie Showing of Sufficient Specific Facts/Evidenti-
ary Hearing
Under Section 4 this Court may not consider the merits
of an application unless it ~ncludes sufficient specific facts
establishing that, the current claims and issues have not been
and could not have been presented previously in an original
application or in a previously considered application because
the factual basis was unavailable on the date of the original
application; or by a preponderance of the evidence, but for
u.s. Constitutional violation .no rational juror could have found
the applicant guilty beyond a reasonable doubt. ·
However, under CCA precedent in Brooks, this Court determ-
inned that all that was necessary to overcome the subsequent
bar was that the applicant make a prima facie showing to warrant
review of his claims on themerits. -
As such, this Court must determine if Miller's application
makes a prima facie showing of "sufficient specific facts'' e~tab-
lishing: ·
1. the claims are new;
2. the claims 'rely on factual predicate unavailable
at time of previous application;
3. the factual predicate was not ascertainable through
due diligence;
4. constitutional violations exist throughout prosecut-
ion;
5. but for violations no rational ju!or could find
guilt beyond a reasonable doubt;
6. t~e new evidence is reliable.
3.
Hon. Judge Karen Sage(Judge Sage) issued Findings of
Fact in response to the instant application. As an initial matter,
Judge Sage did not include Conclusions of Law with her Findings.
She was not the presiding judge of the original prosecution ·,
so could not personally attest to any of the facts of thee case.
She did not hold an evidentiary hearing(which Miller specifically
requested in a separate motion accompanying his habeas applicat-
ion).
In Wilson v. Beard, 426 F.3d 653(3rdCir.2005), the court
found that ''when a petitioner requests a hearing to develop
the record on a claim in state court, and if the state courts ... -
deny that request on basis of an inadequate state ground, the
petitioner has not 'failed to develop the factual basis of [the]
claim in state court proceedings' for purpose of §2254(e)(2)."
Where the state court should have made a finding of fact,
but neglected to do so, the state court factual determination
is perforce unreasonable and there is nothing to which a presump-
tion of correctneis may attach. Taylor v. Maddox, 366 F.3d 992(9th
Cir.2004)[citing Wiggins v. Smith, 539 u.s~ 510, 123 s.ct. 2527,
2539~40(2003) Where the state does make factual findings,
but does so under misapprehension as to the correct legal stand-
ard, the resulting factual determination will be unreasonable
and no presumption of correction can attach to it. TaylotlOOl.
Closely related to cases where the state courts make
factual findings infected by substantive legal error are those
~here the factfinding process itself is defective. If a state
court makes evidentiary findings without holding a hearing and
giving petitioner an opportunity to present evidence, such find-
ings clearly result in. an "unr~asonable determination'' of the
facts. Taylor@lOOl; Bower v. Quarterman, 497 F.3d 459,466(5thCir.
2007)(Betause the state habeas _judge did not preside over a
trial or conduct an evidentiary hearing, the state habeas court's
factual findings are not entitled to a presumption of cortectn-
ess.@466). ·
The u.s. Court o~ Appeals for the 5th Circuit(5th Circuit)
reviews Texas cases. By their interpretation of u.s. Supreme
Court law, because Judge Sage was not the origin~l piesiding
judge of this cause, in making findings of fact~ she was obligated
to hold an evidentiary hearing, replete with the ordering of
affidavits and allowance of Miller to present evidence, NOT
to consider the merits, but merely to determine th€ requirements
of Sectio~ 4 for the possibility of reviewing the merits. The
fact that she didn't disentitles her findings to a presumption
of correctness because they are perforce unreasonable. Furtherm-
ore, Judge Sage's findings reflect that she clearly miscomprehe-
nded Section 4 in that the findings in no way addressed the
necessary elements by which to conform to the correct legal
standard, thereby resulting in an unreasonable factual determina-
tion. Taylor@lOOl.
The u.s. Supreme Court noted in Miller-El v. Cockrell~ 537
u.s. 322, 123 s.ct. 1029 that the state court fact-finding proc-
ess is undermined where the state court has before it, yet appar-
ently ignores, evidence that supports petitioner's claim.("Our
concerns are amplified by the fact that the state court also
had before it, and apparently ignored, testimony that the Dallas
4.
County Distcict Attocney's Office had, by its own admission,
used this process to manipulate the racial composition of the
jucy in the past.")@l044.
The evidence in the instant case of Cleveland's records
demonstcates that on a voluntacy guilty plea, Cleveland was
convicted of the intentional murde~. of Johnston as the sole,
pcimary actor(an offense whose ciccumstances consist of one
gun that only one individual shot to caue Johnston's death.)
Miller pcesented this evidence attached to his mem~randum of
Law and specifically drew the Court's attention to the fact
that in this case, with the ciccumstances as they are, two people
could not both commit the offense alleged, as separate primaries
and under separate causes. The evidence is clear that Cleveland;
was convicted as such 4 months before Miller's prosecution~
In· other words, the Court had before it, and apparently ignored,
irrefutable eyidence that J6hnston's factual killer(i.e., primary
actor, triggerman, murdecer) was convicted, sentenced and impris-
oned before Miller's prosecution even began, which standing
alone, supports Miller's claims so strongly that it ~ndermine~
the state court fact-finding process. Taylor@lOOl. Conjoined with
the other evidence Miller presented, Miller at least succeeded
in presenting claims that warranted further review, i.e., made
a "prima facie showing".
(3) Inadequate Findings Of Fact
On the face of Judge Sage's Findings, notwithstanding
the afore-mentioned deficiencies, it is clear that it was not
found,that the claims were new in relation to the original aplic-
ation. Instead, Judge Sage relied upon the erroneous dismissal
of Wr-it No. WR-53,571-06 in order to find that Miller "merely
repeats the argument made in the -06 application that he is
actually innocent~ •. ".(Finding #6).
In writ ~06, however, it was not found that the actual
innocence claim was new, and in that writ, Judge Sage herself
relied upon the dismissal of writ WR-53,571-05(writ -05) stating,
"it merely repeats the argument made in the -05 application
that he is acutaLly innocent .•. ", yet in writ -05, no findings
of fact were issued at all, revealing that the Court never found
that the claims were new or not, per statute.
Further, in writs-06 and -09, Miller raised different, second
claims that Judge Sage failed to acknowledge altogether, there-
fore failing to make any finding regarding them.
On the face of ,Judge Sage's Findings it is clear that"ll\i>~t-b' 10::.
ho finding of whether or not the claims rely on a factual predi-
cate that was unavailable at the time of the previous applicat-
ion. There was no finding regarding evidence at all, therefore
this Court could not reasonably ascert~in the value of the evide-
nce supporting Miller's claims in conformity to Section 4. Not
according to Judge Sage's Findings.
On the face of Judge Sage's Findings it is clear that she
fouhd Miller raised an actual innocence claim, despit~ her
misstatement of the nature of the claim, yet that is the extent
of her finding. No finding was made into whether or not ~onstitu
tional violations existed throughout Miller's prosecution, ther-
efore it naturally follows that no finding was made into whether
or not but for those ~iolations any rational juror could have
5.
,,
found Miller guilty beyond a reasonable doubt.
Because of Judge Sage's cle~r failure to make the necess-
ary findings that give this Court the proper information upon
which to apply Section 4's requirements, this Court could not
determine• §4(a)(l) regarding the presentment of new claims
and the availability of t~eir factual bases. Section 4(c) could
not be determined regarding diligency on Miller's part. As such,
this Court could not have .reasonably applied the proper legal
standard in dismissing Miller's application under Section 4(a).
Because of Judge Sage's clear failure to make the neces-
sary findings that give this Court the proper information upon
which to apply Section 4, this Court could not determine Section
4(.a)(2) regarding· a prepondernance of evidence that but for
u.s. Constitutional errors no rational juror could find guilt
beyond a reasonable doubt. As such, not only could' this Court
not apply the proper legal standard in determining dismissal
or not, but it could not properly apply Supreme Court law in
Schlup in determining whether or not Miller stated ''sufficient
specific facts'' making a prima facie showing of actual innocence,.
which is exactly the manner in which Miller brought his claims.
In Williams v. Taylor, 529 u.s. 362, l20S.Ct. 1495(2000)
the u.s. Supreme Court held that under 2254(d)(l) the writ may
issue only if one of the following two conditions is satisfied-
-the state-court adjudication resulted in a decision that (l)"was
contrary to ... clearly established federal law, as deteimined
by· the Supreme Court of the United States," or (2) "involved
an unreasonable application of •.. clearly established Federal
law, as det~rmined by the Supreme Court of theUnited.States."
Federal relief is also. granted under 2254(d)(2) if a state-
court decision resulted in a decision "based on an unreasonable
determination of the facts in light of the evidence presented
in the state-court proceeding."
Miller concedes th~t this Court is not bound by Federal Stat-
ute. However, it is boundby u.s. Supreme Court precedence and
as such, it must adhere to Federal law while enforcing its own
statutes.
(4) Inadequate Section 4 Review
Because this Court had a statutory duty to review.
~iller's subsequent writ within ·the purview of Section 4; to
ascertain if he stated "sufficient specific facts" ofeither
or both of the enumerated requirements, Miller had a u.s. Const-
i~utional liberty interest in receiving a proper review, protec-
ted and guaranteed him through the 14th Amendment. As detailed
above, the district court failed to conduct an adequate develop-
ment of facts sufficient for thiS Court to properly apply the
legal standards set forth in Section 4. By this Court dismissing
Miller's application in spite of the deficiencies and lack of
adherence to statute, it made those deficiences its own, which
resulted in an inadequate Section 4 review.
Furthermore, u.s. Supreme Court law is fery clear on
wh a t ·cons t i t u t e s a " fund amen t a 1 mi s c a c r i a g e of j s u t i c e " e x c e p t ion .
In appropriate ~ases, the principles of comity and finality
that inform the concepts of cause and prejudice "must yield
6.
to the imperative of correcting a fundamentally unjust incarcera-
tion.P Schlup@320[quoting Murray v. Carrier, 477 u.s. 478,496,
106 s.ct. 2639,2649(1986)].
The fundamental miscarriage of justice exception is
confined to cases of actual innocence. ''where the petitioner
shows, as a factual matter, that he did not commit the crime
of conviction." Fairman v. Anderson, 188 F.3d 635,644(5thCir.
1999); Shelton v. King, 548 F.Supp. 2d 288,304(S.D.Miss.2008).
To establish the requisite probability of innocence, he must
"Supper~ his allegations with new, reliable evidence that was
not presented at trial and must show that it is 'more likely
than not that no reasonable juror would have con~icted him in
light of the new evidence'." Fairman@644(quoting Schlup@327.)
Examples of new, reliable evidence that may establish
factual innocence include exculpatory scientific evidence, credi-
ble declarations of guilt by another, trustworthy eyewitness
accounts and certain physical evidence. Fairman@644[citing Sawyer
v. Whitley, 505 u.s. 333,340, 112 s.ct. 2514(1992).]
As mentioned above, Miller presented the plea-hearing
transcripts and post-judgment records of cause no. 000753 with
his application, wherein Cleveland was convicted onher valid
guilty plea as the sole, primary actor for Johnston's murder.
Miller was subsequently convicted as the sole, primary actor
for murdering Johnston. By u.s. Supreme Court standards, Clevel-
and's guilty plea and conviction thereon, for which she is curre-
ntly still imprisoned on, constitutes a "credible declaration
of guilt by another", yet this Court never considered the evide-
nce and thus could not properly apply the appropriate Supreme
Court legal standard in determining whether Miller met the fund-
amental miscarriage of justice standard or not, despite Miller
having directly raised actual innocence claims and briefed on
miscarriage standards in his memorandu~.
IV.
CONCLUSION
Wherefore. all premises considered, Miller respectfully
prays that this court grant this motion and on its own initiative
reconsider the dismissal of his subsequent habeas application
so as to ascertain whether or not a proper review was conducted
under Section 4, and if not, one may be held.
Miller asks this towards the ends of justice and no
party will be harmed by this Court's granting of this suggestion.
Submitted,
Miller
Pro se
FM 632
Kenedy, TX78119
John B. Connally Unit
7.
February 22,2015
Dear 'Clerk of the Court of Criminal Appeals,
Enclosed, please find the following:
1. Suggestion That The Court Reconsider On Its Own
Motion The Dismissal Of The Subsequent Applica-
tion For Writ Of Habeas Cotpus.
Will you please file this document under the appropriate
cause number and present- it to the court for consideration?
Included with this letter is a second, ideritical letter and
if you would please date-stamp the copy and return it to me
via the included self-addressed, stamped envelope, it would
be greatly appreciated.
Thatnk you for your time and assistance in this matter!
se
899 FM 632
Kenedy, TX 78119
John B. Connally Unit
1.
February 22,2015
Dear Clerk of the Court of Criminal Appeals,
Enclosed, please find the following:
1. Suggestion That The Court Reconsider On Its Own
Motion The Dismissal Of The Subsequent Applica-
tion For Writ Of Habeas Corpus.
Will you please file this document under the appropriate
cause number and present it to the court for consideration?
Included with this letter is a second, identical letter and
if you would please date-stamp the copy and return it to me
via the included self-addressed, stamped envelope, it would
be greatly appreciated.
Thatnk you for your time and assistance in this matter!
Kenedy, TX 78119
~------
John B. Connally U~it
1.