Henry, Bobby ( 2015 )

Court of Criminal Appeals
Clerk of Court - ~bel Acosta
P.O. Box 12308
Capitol Station RECEIVED IN
Austin, TX 78711
COURT OF CRIMINAL APPEAlS
Dea.r Honorable Clerk Acosta: OCT 05 2015
P. 1 e as e . find en c 1 o s e d a co p y o f the Re s p o ns e t.h a.t I f i 1 e\d w ~1t h
the Clerk o.f ·Court in Harris County on. Sept.ember 10, 2015. T``tf'i.COSfa,Cferk
Judge for that Court had· signed the Findings of Facts/State's
Con~lusion of Law for my 11.07 Wr·it of Habeas Corpus two days prior
to receiving my Response and my fear is that the Clerk sent you
my 11.07 application and file with· it to you before they received
said Response.
I request at this time that you file this. copy with the file
t hat yo u
h a v e. · o n me . I_! t h i s Co u r t h a s. a 1 r e a d y r e c e i v e d my 1 1 . 0 7
application, exhibits, memorandum of law, etc. for this Court's
ruling, would you plea.se present it to the Court for inclusion with
everything else.
Thank you very much fmr your kind assistance in this matter. I
have enclosed a S.A.S.E. for your convienence so that you can
return a File/Qate stamped copy of this letter to me.
Respectfully Submit
uJl-2ct J7o-63
CAUSE NO. /2?.2~32-d 720 F.2d 812, 816 (5th Cir 1983)(Coun-
sels can not be expacted to admit their own ineffectiveness in the
habeas proceedings in sworn affidavits). Doing so would be detri-
mental to counsels livelihood .. It will therefore, require the ex-
tensive knowledge and skills ofanother attorney to test the ere-
ibility of his/her answers in a crucial cross-examination.
(1 )
It's beyond dispute that counsel's, the court reporter's and
the .Dist~ict Attorney's and trial Judge's answers in their respec-
tive affidavits w~ll all be subjected to a credibility determina-
tion. This is a duty that only the Judge that conducted the trial
can perform. Yet·, in· this case, 'the trial judge. understandably can
not u n b i a.s 1 y assess the c red i b i 1· it y of his own a f f ida vi t . With this
in mind, the Federal Courts have consistently ruled a Judge that
did not conduct the trial is "disqualified". to judge the credibility
of affidavits prese.nted in a habeas proceddings by the trial counsel,
DA's or witnesses etc .... This is true because only the trial jud-
ge has first hand knowledge to compare the 'facts that are in said
affida~it(s) to what. actual~y took place.at trial. As such, a paper
hearing will not be considered a fair and full determination of
facts in the Habeas proceeding. Perilla v. Johnson, 79 F.3d 441,
446 (5th Cir 1996).
"Moreover, even if there has been state court findings on this
issue they would not be entitled to the presumption of correctness.
State court habeas findings ·of fact are presumed· correct "only"
when there has been a full and fair hearing. 28 U.S.C. §2254(d).
Armstead v. Scott, 61 F.3d 333, 347 (5th Cir 1995).
''[I]t is necessary to examine. in each case whether a paper hear-
ing is appropriate to .the nesoluti·on of the factual dispute under-
lying the petitioner's claim." May. v. Collin,. 955 F.2d 299, 312
(5th Cir). Nevertheless, a factfinding procedure .that involves cred-
ibility determinations and is based on a paper hearing affords the
(2)
habeas petitioner a full and fair hearing when the state court
judge who has presided over the petitionerls trial conducts the
habeas petitioner's proceedings. (``~stead, 37 F.3d at 208).
Next, applicant seeks to develop the factual basis of his claim
against the Judge and DA. These allegations, if true, will entitle
applicant to relief and, therefore, by U.S. Supreme Court decision
require this Court to allow applicant to develop the factual basis
of his claim .. ss, Townssnd v. Sain, 372 U.S. 293 (1963)(held; on
the record in this case the District Court erred in denying a Writ
of Habeas COrp.us withou.t a plenary evidentiary hearing. Pp. 372 U.S.
295-322); see also Blackledge v. Allison, 97 S. Ct. 1621, 1633 (1977)
(''But Allison is entitled to care.ful conside~ation and plenary
processing of (his claim) inclu~ing full opportunity for presenta-:~
tion of the relevant facts". Harris v. Nelson, 394 U.S. at 298, 89
S.Ct. at 109DY; see also Id. n.25: (When the issue is one of credi~
bility resolutions on the basis of affidavits can rarely be ~on­
elusive but that is· not to say they may not be helpful.)
The trial court ·is Not Free to ignore Supreme Court decisions.
Highwarden v. State, 846 S.W.2d 479, 481 (Tex.App. Houston (14 Dist]
1993).
Therefore, this Honorable Court is Required by Supreme Court
decision to allDw applicant to develop the facts from every source
that has personal· knowledge. of the factual. allegations within his
habeaswapplication. see Brown v. Johnson, 224 F.3d 461, 467 (5th Cir
2GDO).
Additionally, if these presently unresolved issues are not re-
(3)
solved by this Honnrable Court during a live Evidentiary hearing,
it will deny applicant a fair and full opportunity to resolve them.
WHEREFORE, PREMISES CONSIDERED, Applicant prays that this motion
in all things be granted, thereby ordering a live evidentiary hear-
i ng be he 1 d and issue a bench warrant for Ap p,l i cant so he can per-
sonally attend this hearing. In the alternative, supplement this
paper hearing as requested herein and grant Applicant any other or
additional relief he is justly entitled to. It is so prayed.
CERTIFICATE OF SERVICE
I hereby certify tha·t a true and correct copy of the above
motion was. served on Chris Daniel by placing a copy in the U.S.
Mail addressed to: Chris Daniel, Clerk of Court, 1201 Franklin St.,
Houston, Texas 7700·2 on this the 1Oth day of 'September 2015.
c__...~.J0~)lftl3
Appl~ nt
UNSWORN DECLARATION
I, Bobby Henry, TDCJ-ID #1719613, presently incarcerated in
the Wayne Scott Unit af the Texas De~artment of Criminal Justice in
Brazoria County, Texas, verify and declare under penalty of perjury
that the foregoing statements are true and correct.
EXECUTED on this the 10th day of September 2015.
R pectfully Submitted,
/I '!tltt3
enry
Wayne Scott Unit
6999 Retrieve Rd
Angleton, Texas 77515
Applicant, Pro se
( 4)