Hiram Miles v. State ( 2015 )

Date: tfUu Ti
?0i5 HAY 29 kU
Clerk of the Court
United States Supreme Court
1 First Street, N.E.
Washington, DC 20543
RE: Piling Of Writ of Certiorari
Dear Clerk,
Enclosed, please find the Original of the "Writ of
Certiorari, Motion For Leave To Proceed In Forma Pauperis,
Affidavit or Declaration In Support of Motion For Leave To Proceed
In Forma Pauperis and, Proof Of Service."
Please file these documents and bring it to the immediate
attention of the Court for any necessary proceedings to be had
thereon.
Please notify me of the Cause Number assigned to the case
as soon as possible.
Thank you in advance for your time and kind assistance
in this very important matter.
Sinrcerel
/Al/Lram Miles
TDCJ-CID No.785448
W.P. Clements Unit
9601 Spur 591
Amarillo, Texas 79107-9606
c/file
No.
IN THE
SUPREME COURT OF THE UNITED STATES
HIRAM MILES - PETITIONER
VS.
TEXAS COURT OF CRIMINAL APPEALS - RESPONDENTS
DECLARATION OF FILING
I, Hiram Miles, TDCJ-CID No.785448 an inmate confined
at the William P. Clements Unit of t he Texas Department of
Criminal Justice - Correctional Institutions Division in Potter
County Texas, certify that the Motion for Leave to Proceed In
Forma Pauperis and Petition for a Writ of Certiorari were timely
filed by depositing in the prison's internal mail system, first-
class postage prepaid, on the uJl daY of May 2015' before the
last day for filing and declare under the penalty of perjury
that the foregoing is true and correct pursuant to 28 U.S.C
§1746, addressed to:
Texas Court of Criminal Appeals Fourth Court of Appeals
P.O. Box 12308,Capitol Station 300 Dolorosa,Suite 3200
Austin, Texas 78711 San Antonio,Texas 78205
EXECUTED on fift^ U ,2015.
Peti pro se
No.
IN THE
SUPREME COURT OF THE UNITED STATES
HIRAM MILES — PETITIONER
(Your Name)
VS.
TEXAS COURT OF CRIMINAL APPEALS- RESPONDENT(S)
PROOF OF SERVICE
I, Hiram mjIpfj , do swear or declare that on this date,
P(Yau VL , 20J51, as required by Supreme Court Rule 29 I have
served the enclosed MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
and PETITION FOR A WRIT OF CERTIORARI on each party to the above proceeding
or that party's counsel, and on every other person required to be served, by depositing
an envelope containing the above documents in the United States mail properly addressed
to each of them and with first-class postage prepaid, or by delivery to a third-party
commercial carrier for delivery within 3 calendar days.
The names and addresses of those served are as follows:
Texas Court of Criminal Appeals Fourth Court of Appeals
P.O. BOX 12308,Capi tol Stat ion 300 Dolorosa , Suite 3200
A11 s t" i n . 1Ppxns 7871 1 San Antonio, Texas 78205-3037
I declare under penalty of perjury that the foregoing is true and correct.
Executed on //ray 2/ , 2QJ1l
(Signature)
No.
IN THE
SUPREME COURT OF THE UNITED STATES
HIRAM MILES PETITIONER
(Your Name)
VS.
TEXAS OOORT OF CRIMINAL APPEALS- RESPONDENT(S)
MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
The petitioner asks leave to file the attached petition for a writ of certiorari
without prepayment of costs and to proceed in forma pauperis.
Please check the appropriate boxes:
SI Petitioner has previously been granted leave to proceed in forma pauperis in
the following court(s):
290th Judicial District Court,Bexar County Texas; 4th Court of
Appeals,San Antonio,Texas, U.S. District Court and 5th Circuit
□ Petitioner has not previously been granted leave to proceed in forma
pauperis in any other court.
[x] Petitioner's affidavit or declaration in support of this motion is attached hereto.
□ Petitioner's affidavit or declaration is not attached because the court below
appointed counsel in the current proceeding, and:
□ The appointment was made under the following provision of law:
or
I a copy of the order of appointment is appended.
(Signature)
AFFIDAVIT OR DECLARATION
IN SUPPORT OF MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
I, Hiram Miles t am the petitioner in the above-entitled case. In support of
my motion to proceed in forma pauperis, I state that because of my poverty I am unable to pay
the costs of this case or to give security therefor; and I believe I am entitled to redress.
1. For both you and your spouse estimate the average amount of money received from each of
the following sources during the past 12 months. Adjust any amount that was received
weekly, biweekly, quarterly, semiannually, or annually to show the monthly rate. Use gross
amounts, that is, amounts before any deductions for taxes or otherwise.
Income source Average monthly amount during Amount expected
the past 12 months next month
You Spouse You Spouse
Employment $ n/a $ n/a $ n/a $ n/a
n/a n/a $ n/a $ n/a
Self-employment $ $
Income from real property $ n/a $ n/f» $ n/a $ n/a
(such as rental income)
Interest and dividends $ n/a $ n/a $ n/a $ n/a
n/a n/a n/a n/a
Gifts $ $ $ $
Alimony $ n/a $ n/a $ n/a $ n/a
n/a n/a $ n/a $ n/a
Child Support $ $
n/a n/a n/a n/a
Retirement (such as social $ $ $ $
security, pensions,
annuities, insurance)
n/a n/a n/a $ n/a
Disability (such as social $ $ $
security, insurance payments)
Unemployment payments $ n/a $ n/a $ n/a $ n/a
n/a n/a $ n/a $ n/a
Public-assistance $ $
(such as welfare)
Other (specify): Mom $_35Q.Q0_ $ n/fl $ 40.00 $ n/a
Total monthly income: $ 40.00 $ 40.00 $
$
2. List your employment history for the past two years, most recent first. (Gross monthly pay
is before taxes or other deductions.)
Employer Address Dates of Gross monthly pay
Employment
n/a n/a n/a $ "/a
$
$
3. List your spouse's employment history for the past two years, most recent employer first.
(Gross monthly pay is before taxes or other deductions.)
Employer Address Dates of Gross monthly pay
Employment
n/a n/a n/a $_ n/a
$.
$.
4. How much cash do you and your spouse have? $_ 0.00
Below, state any money you or your spouse have in bank accounts or in any other financial
institution.
Financial institution Type of account Amount you have Amount your spouse has
-n/a n/a $ n/a $ n/a
$ $
$ $
5. List the assets, and their values, which you own or your spouse owns. Do not list clothing
and ordinary household furnishings.
□ Home □ Other real estate
Value Value n/a
I Motor Vehicle #1 □ Motor Vehicle #2
Year, make & model -n/a- Year, make & model
Value n/a Value "/a
□ Other assets
Description n/a
Value
6. State every person, business, or organization owing you or your spouse money, and the
amount owed.
Person owing you or Amount owed to you Amount owed to your spouse
your spouse money
n/a $ n/a $ n/a
$ $
$ $
7. State the persons who rely on you or your spouse for support.
Name Relationship Age
n/a n/a n/a
8. Estimate the average monthly expenses of you and your family. Show separately the amounts
paid by your spouse. Adjust any payments that are made weekly, biweekly, quarterly, or
annually to show the monthly rate.
You Your spouse
Rent or home-mortgage payment
(include lot rented for mobile home) ft n/a ft n/a
Are real estate taxes included? □ Yes □ No
Is property insurance included? □ Yes D No
Utilities (electricity, heating fuel,
n/a n/a
water, sewer, and telephone) $ $
Home maintenance (repairs and upkeep) $ n/a $ n/a
Food $ n/a $ n/a
Clothing $ n/a $ n/a
Laundry and dry-cleaning $ n /?i $ p/s
Medical and dental expenses $ n/a $ n/a
You Your spouse
Transportation (not including motor vehicle payments) $ n/a $ n/a
Recreation, entertainment, newspapers, magazines, etc. $ n/a $ n/a
Insui'ance (not deducted from wages or included in mortgage payments)
Homeowner's or renter's $ n/a $ n/a
Life $ n/a $ n/a
Health $ n/a $ n/a
Motor Vehicle $ n/a $ n/a
Other: n/a $ $
Taxes (not deducted from wages or included in mortgage payments)
(specify): n/a $ $
Installment payments
n/a n/a
Motor Vehicle $ $
n/a n/a
Credit card(s) $ $
n/a n/a
Department store(s) $ $
Other: n/a $ $
n/a n/a
Alimony, maintenance, and support paid to others $ $
Regular expenses for operation of business, profession,
or farm (attach detailed statement) $ n/fl $ n/a
Other (specify): n/a $ $
Total monthly expenses: $ n/a $ n/a
9. Do you expect any major changes to your monthly income or expenses or in your assets or
liabilities during the next 12 months?
□ Yes S No If yes, describe on an attached sheet.
10. Have you paid - or will you be paying - an attorney any money for services in connection
with this case, including the completion of this form? □ Yes Q No
If yes, how much?
If yes, state the attorney's name, address, and telephone number: n/a
11. Have you paid—or will you be paying—anyone other than an attorney (such as a paralegal or
a typist) any money for services in connection with this case, including the completion of this
form?
□ Yes G3 No
If yes, how much?
If yes, state the person's name, address, and telephone number:
n/a
12. Provide any other information that will help explain why you cannot pay the costs of this case.
I'm not employed and do not earn money in my prison job assignment.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on: fflSiJ t\ y , 20 1S~
(Signature)
No.
IN THE
SUPREME COURT OF THE UNITED STATES
HIRAM MILES _ pFTmnMFR
(Your Name)
vs.
TEXAS COURT OF CRIMINAL APPEALS- RESPONDENT(S)
ON PETITION FOR A WRIT OF CERTIORARI TO
Court oF Criminal Appeals of Texas
(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)
PETITION FOR WRIT OF CERTIORARI
HIRAM MILES TDCJ-CID NO. 785448
(Your Name)
W.P. Clements Unit/ 9601 Spur 591
(Address)
Amarillo, Texas 79107-9606
(City, State, Zip Code)
(Phone Number)
QUESTION(S) PRESENTED
Does The Due Process Clause Of The Fourteenth Amendment
Permit The Texas Court Of Criminal Appeals To Deny Mandamus
Relief On A Lower Courts Failure To Review A Pro Se
Appellant's Brief Under The Anders Procedure Established
By The United States Supreme Court?
Does The Due Process Clause Of The Fourteenth Amendment
Render The Mandamus Statute Unconstitutional When A State
Appellate Court Fail To Follow Its Standard Of Review?
Does The Due Process Clause Of The Fourteenth Amendment
Allow Fraud On The Court By State Appellate Court Justices
In Review Of United States Supreme Court Precedent?
II.
LIST OF PARTIES
[ ] All parties appeal* in the caption of the case on the cover page.
[xl All pai'ties do not appear in the caption of the case on the cover page. A list of
all parties to the proceeding in the court whose judgment is the subject of this
petition is as follows:
Fourth Court of Appeals District of Texas
III.
TABLE OF CONTENTS
OPINIONS BELOW 1
JURISDICTION 2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 3
STATEMENT OF THE CASE 4
REASONS FOR GRANTING THE WRIT Q
CONCLUSION
INDEX TO APPENDICES
APPENDIX A _ Notice from Court of Criminal Appeals of Texas/
dated: March 4,2015
APPENDIX B _ Notice of Receipt By Clerk/dated: September 18,1998
APPENDIX C _ Judgment/Opinion of the Fourth Court of Appeals,
dated: March 3,1999
APPENDIX D - order of the Fourth Court of Appeals,dated: July
20,1998
APPENDIX E - Findings of Fact,Conclusions of Law and
Recommendation,Order,dated: October 4,2000
APPENDIX F
IV.
TABLE OF AUTHORITIES CITED
CASES PAGE NUMBER
Allied Chemical Corp. v. Daif lori/Inc . /
101 S.Ct.188(1980) 8
Anders v. California, 67 S.Ct. 738(1967) 9,10,11,16
Bulloch v. United States, 763 F.2d at 1121
(10th Cir.1985) 14
Carrio, Ex parte, 992 S.W.2d 486(Tex.Crim.App.1999) .... 15,16
Evitts v. Lucey, 105 S.Ct.830(1985) 9
Griffin v. Illinois, 76 S.Ct.585(1956) 9
Hazel-Atlas Glass Co. v. Hartford Empire Co., 64
997(1944) 14
Rodriguez v. State, 4 S.W.3d 227(Tex.Crim.App.1999) 8
Pennsylvania v. Finley, 107 S.Ct.1990(1987) 9
Ross v. Moffit, 94 S.Ct.2437(1974) 9
Skinner.v. Switzer, 131-S. Ct. 1298( 2011) 13
Stafford v. State, 813 S.W.2d 511(Tex.Crim.App.1991) ... 11
Stoddard v. Chambers, 43 U.S. 284,2 How.284,11 L.Ed.
269(U.S. Mo.1844) 15
Strahan v. Blackburn, 750 F.2d 433(5th Cir.1985) 16
STATUTES AND RULES
Article 4.04, Section 1, Texas Code of Criminal
Procedure 11
Article 11.07, Section 5/ Texas Code of Criminal
Procedure 12
Article 5, Section 5, Texas Constitution 11
V.
IN THE
SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI
Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.
OPINIONS BELOW
[ ] For cases from federal courts:
The opinion of the United States court of appeals appears at Appendix to
the petition and is
[ ] reported at ; or,
[ ] has been designated for publication but is not yet reported; or,
[ ] is unpublished.
The opinion of the United States district court appears at Appendix to
the petition and is
[ ] reported at ; or,
[ ] has been designated for publication but is not yet reported; or,
[ ] is unpublished.
[ ] For cases from state courts:
The opinion of the highest state court to review the merits appeal's at
Appendix A to the petition and is
[ ] reported at ; or,
[ ] has been designated for publication but is not yet reported; or,
[ xl is unpublished.
The opinion of the court
appears at Appendix to the petition and is
[ ] reported at ; or,
[ ] has been designated for publication but is not yet reported; or,
[ ] is unpublished.
1.
JURISDICTION
[ ] For cases from federal courts:
The date on which the United States Court of Appeals decided my case
was
[ ] No petition for rehearing was timely filed in my case.
[ ] A timely petition for rehearing was denied by the United States Court of
Appeals on the following date: , and a copy of the
order denying rehearing appeal's at Appendix
[ ] An extension of time to file the petition for a writ of certiorari was granted
to and including (date) on (date)
in Application No. A
The jurisdiction of this Court is invoked under 28 U.S. C. § 1254(1).
[ ] For cases from state courts:
The date on which the highest state court decided my case was March 18 #2015
A copy of that decision appears at Appendix a .
[ ] A timely petition for rehearing was thereafter denied on the following date:
, and a copy of the order denying rehearing
appears at Appendix
[ ] An extension of time to file the petition for a wi'it of certiorari was granted
to and including (date) on (date) in
Application No. A
The jurisdiction of this Court is invoked under 28 U.S. C. § 1257(a).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
Fourteenth Amendment/Section 1. United States Constitution
Section 1 All persons born or naturalized in the United
States/and subject to the jurisdiction thereof,are citizens
of the United States and of the State wherein they reside.
No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United
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 protection
of the laws.
Section 1,Article 4.04/ Texas Code Criminal Procedure
The court of criminal appeals and each judge thereof
shall have, and is hereby given, the power and authority
to grant and issue and cause the issuance of writs of
habeas corpus, and in criminal law matters, the writs
of mandamus,procedendo,prohibition, and certiorari. The
court and each judge thereof shall have and is hereby
given, the power and authority to grant and issue and
cause the issuance of such other writs as may be
necessary to protect its jurisdiction or enforce its
judgments.
3.
STATEMENT OF THE CASE
On January 4,1996, Petitioner Hiram Miles, was indicted
for the offense of murder committed on or about October 10,
1995. (Clerk's Record Vol.I,p.7)
Jury trial commenced on March 31,1997, after a plea of
not guilty, a verdict of guilty was returned on April 3,1997
and the jury assessed punishment on that same day at life
imprisonment and $10,000 fine. (Clerk's Record Vol.I,p.8);
(Clerk's Record Vol-II,p.176)
A notice of appeal was timely filed on April 17,1997.
On May 18,1998, court-appointed appellate counsel, Raymond
Fuch, filed a "Anders Brief In Support of Motion to Withdraw
As Counsel" with the Fourt hCourt of Appeals in Appeal No.04-
97-00313-CR.
Mr. Fuch provided Petitioner with a copy of the Ander's
Brief advisig him of his right to review the record and file
a Pro Se Brief raising any ground he consider has merit. Mr.
Fuch, also, informed him of the time limitation to file the
brief suggesting that Petitioner request an extension of time
from the Fourth Court of Appeals.
On July 9,1998, Petitioner Miles wrote the Fourth Court
of Appeals asking ofr his records by motion to file his brief.
On July 20,1998, the Fourth Court of Appeals asknowledged
in a Order that Petitioner asserted his right to file a pro
4.
se brief. This Order directed the Bexar County District Clerk
to prepare and send a full and complete duplicate copy of the
Clerk's and Reporter's Records for Cause Number 1996-CR-0010
to Petitioner. (Appendix D: Order of the Fourth Court of Appeals
dated July 20,1998)
This Order granted an extension of time stating that "the
Pro Se Brief is due on or before the 18th day of September 1998."
see also (Appendix D)
On September 18,1998, Fourth Court of Appeals Clerk, Mr.
Herb Schaefer, acknowledged receipt and filing of the "Pro Se
Appellant Brief" for the Court, see (Appendix B: Notice of
Receipt By Clerk,dated September 18,1998)
After being provided with a copy of the brief,Enrico B.
Vadez, the State's Attorney filed three{3) motins for extensions
of time, filing its reply brief on the 19th day of January 1999.
On February 4,1999, Petitioner Miles was notified by Clerk
Schaefer that the Court set a formal submission on "Briefs"
for the 2nd day of March, A.D. 1999.
On MArch 3,1999, Justice Karen Angelini delivered the
Opinion for the court of appeals affirming Petitioner Miles
conviction by review of the brief filed by appellate counsel
Mr. Fuchs and the record on appeal,agreeing that the appeal
is frivolous and without merit granting counsel's motion to
withdraw, see (Appendix C: Judgment/Opinion Of The Fourth Court
of Appeals,dated March 3,1999)
Justice Angelini in her Opinion states "Miles has not
5.
filed a brief." Id.
Petitioner Miles filed his initial application for writ
of habeas corpus on January 18,2000. On August 16,2000 it was
denied by the Texas Court of Criminal Appeals without written
order on the findings of the trial court without a hearing. See
Trial Court No. 1996-CR-0010-WI; Writ No- WR-46,247-01-
On July 31,2000, a second application for a writ of habeas
corpus was filed and denied on November 8,2000 without written
order based on the finding s of the trial court without a
hearing, see Trial Court No-1996-CR-0010-W2;Writ No. WR-46,247-
02.
On September 18,2000, a third application for a writ of
habeas corpus was filed supplementing the second application
by the trial court. The trial court found that Petitioner had
timely filed his pro se appellant brief pursuant to Anders v.
California and recommended that relief be granted- see (Appendix
E: Pages 2-4, Findings of Fact,Conclusions of Law and Recommend
ation ,ORDER)
Cn November 8,2000, the Texas Court of Criminal Appeals
dismissed without written order labeling the supplemental
application a subsequent application, see (Ex parte Hiram Miles
Writ No- WR-46,247-03)
On March 4,2015, Petitioner Miles filed a Petition for
Writ of Mandamus and Prohibition in the Court of Criminal Appeals
of Texas asking the court under the mandamus standard of review
to force the lower Fourth Court of Appeals to review the Pro
6.
Se Appellant Erief filed pursuant to Anders v. California
standard of review, see (Appendix A: Notice from Court of
Criminal Appeals Of Texas,dated March 4,2015)
On March 18,2015, the Court of Criminal Appeals of Texas
denied without written order the Original Application for Writ
of Mandamus and Prohibition- see (Appendix A: Notice from Court
of Criminal Appeals Of Texas,dated March 18,2015)
7.
REASONS FOR GRANTING THE PETITION
The state court of last resort/ on mandamus review, denied
relief on a important federal question in a way that conflicts
with relevant decisions of this Court through denial of mandamus
relief, rendering the mandamus statute unconstitutional- See
(Appendix A: Notice from Court of Criminal Appeals of Texas/dated:
March 18,2015)
Mandamus Standard Of Review
Mandamus review has a universal standard of review to
be applied in extraordinary circumstances.
The Texas mandamus standard of review requires the
Petitioner to show:
1) A cleat Light to relief usually when the judicial
conduct in question violates a ministerial duty, and
2) No adequate remedy at law to redress the alleged harm
see Rodriguez v. State, 4 S.W-3d 227 (Tex.Crim.App.1999);scc
also Allied Chemical Corp. v. DaifIon,Inc., 101 S-Ct.188 (1980)
A Clear Right To Relief Usually When The Judicial Conduct In
Question Violates A Ministerial Duty
Petitioner Miles demonstrates in the mandamus to the Court
of Criminal Appeals of Texas that he has a clear right to the
Relief sought under mandamus review.
The Equal Protection Clause and Due Process Clause of
the Fourteenth Amendment converge to require that a State's
8.
procedure "affor[d] adequate and effective appellate review
to indigent defendants," Griffin v- Illinois/ 351 U-S-, at 20,
76 S.Ct- 585,100 L.Ed. 891(1956)(plurality opinion)
Compare Finley with Lucey, where the U.S. Supreme Court
held "the equal protection guarantee.--only-.-assure[s] the
indigent defendant an adequate opportunity to present his
claims fairly in the context of the State's appellate process,
see Pennsylvania v. Finley, 481 U.S.,at 556,107 S-Ct.1990,95
L.Ed.2d 539(1987)(quoting Ross v. Moffit, 417 U.S.,at 616,94
S.Ct.2437,41 L.Ed-2d 821(1974) and Lucey's holding that "[D]ue
process-..[requires] State's --- to offer each defendant a fair
opportunity to obtain an adjudication on the merits of his
appeal. Evitts v- Lucey,469 U.S.,at 405,105 S-Ct.830,83 L-Ed-
2d 821(1985)(quoting Griffin,351 U.S.,at 20,76 S.Ct-585
(plurality opinion)
The U.S. Supreme Court mandates that "a criminal appellant
pursuing a first appeal as of right [the] minimum safeguards
necessary to make that appeal 'adequate and effective,"
established the Anders procedure to ensure that indigent
defendants are afforded their right to an adequate appeal under
the Equal Protection and Due Process Clauses of the Fourteenth
Amendment to the U.S. Constitution when a appointed Appeal
counsel alleges that the appeal is frivolous.
This Honorable Supreme Court of the United States, long
ago, established a three (3) step procedure to determine if
an indigent's appeal is wholly frivolous- See Anders v.
9.
California, 386 U.S. 738 (1967)
These steps are triggered when appointed appellate counsel
alleges that an appeal is frivolous and without merit-
Counsel's Role - Appointed counsel must make a conscien
tious review of the record to decide if it presents any
nonfrivolous grounds for appeal. If this review convinces
appointed counsel the appeal is wholly frivolous/ he must
ask the court for permission to withdraw. But he must
file "a brief referring to anything in the record that
might arguably support the appeal" and provide the
appellant with a copy of this brief. Anders,386 U.S.
at 744
Appellant's Role - If appointed counsel files a motion
to withdraw and brief complying with Anders, the court
must provide the appellant with time to file a pro se
brief "to raise any points he chooses...,"Id.
The pro se brief is the appellant's opportunity
to help the court decide if the record on appeal raises
any nonfrivolous ground for appeal- See (Appendix B:
Notice of Receipt By Clerk,dated September 18,1998)
Court's Role - After the appellant has been given an
opportunity to file a pro se brief, the court must conduct
a "full examination of all proceedings, to determine
whether the case is wholly frivolous." To make this
determination, the court reviews the Anders brief filed
by appointed counsel, the record on appeal, and any pro
se brief filed by the appellant. If the court establishes
the appeal is wholly frivolous,it affirms the judgment.
But, if the review reveals an arguable ground for
appeal, the court must appoint another attorney to assist
the appellant in arguing the appeal.Id
The above procedures are a ministerial duty on part of
the court of appeals, mandated by the Supreme Court of the
United States and is not left to any lower courts discretion.
See Anders,supra -
The Court of Criminal Appeals of Texas adopted the Anders
three (3) step procedural requirement through its decision in
10.
Stafford v. State,813 S.W.2d 511 (Tex.Crim.App-1991):see also
Anders v. California,386 U.S. 738(1967)
The Court of Criminal Appeals of Texas has been given
the jurisdiction by the State Legislature to review mandamus
on ministerial duty violations, see Section 1,Article 4.04,
Texas Code of Criminal Procdure.
Section 1,Article 4.04, TEX.CODE CRIM-PRO.,provides:
The court of criminal appeals and each judge thereof
shall have,and is hereby given,the power and authority
to grant and issue and cause the issuance of writs of
habeas corpus,and,in criminal law matters,the writs of
mandamus,procedendo,prohibition,and certiorari- The court
and each judge thereof shall have and is hereby given,
the power and authority to grant and issue and cause the
issuance of such other writs as may be necessary to
protect its jurisdiction or enforce its judgments.
See also Article 5, Section 5, Texas Constitution
Therefore, the highest, slate appellate court has
jurisdiction to enforce its judgment by mandamus review of the
ministerial duty violation by the Fourth Court of Appeals as
mandated by Stafford,supra; Anders,supra -
After appointed counsel's filing of an Anders Brief and
Motion to Withdraw and upon receipt of the Clerk's and Reporter's
Records, Petitioner did not agree with counsel's finding that
the appeal was frivolous and asserted his right under Anders.
Petitioner fulfilled his role as required pursuant to
the Anders procedure by timely filing his "Pro Se Appellant's
Brief" on September 18,1998. See (Appendix B: Notice of Receipt
By Clerk,dated September 18,1998)
11.
The Fourth Court of Appeals did not perform its judicial
function prior to rendering judgment by stating in its Opinion
"Miles has not filed a brief;" ignoring its ministerial duty
to review the pro se brief when competent court records and
notice of receipt by the Fourth Court of Appeals Clerk certify
otherwise, see (Appendix B: Notice of Receipt By Clerk/dated
September 18/1998); see also (Appendix C: Opinion/Judgment of
the Fourth Court of Appeals,dated March 3,1999)
As a result of the Fourth Court of Appeals ministerial
duty violation by not reviewing the Pro Se Brief pursuant to
Anders establishes that he has a clear right to the relief sought
under the first prong of the mandamus review requirement.
No Adequate Remedy At Law To Redress The Alleged Harm
Petitioner Miles pursued the mandamus standard reveling
that he had no adequate remedy at law to redress the alleged
harm due, in part, to the Petitioner being unable to pursue the
only avenue of relief from fraud on the court and due process
of law violation whereby Section 4,Article 11.07, Tex. Code Crim.
Pro., does not redress the harm done to Petitioner Miles by
the Fourth Court of Appeals to this date.
In addition, Section 5,Article 11.07 of the Texas Code
of Criminal Procedure, "after conviction the procedure outlined
in the Act shall be exclusive and any other proceeding shall
be void and of no force and effect in discharging the prisoner."
12.
Therefore, Article 11.07 application for a writ of habeas
corpus is the only avenue for relief from the fraudently obtained
judgment by the Fourth Court of Appeals, pushing Petitioner
Miles down the mandamus road for relief.
The Court of Criminal Appeals of Texas is under a duty,
even though discretionary, to review the mandamus filed against
the court of appeals and grant the relief requested after the
Petitioner has shown, extensively, evidence that warranted the
granting of the relief requested.
According to Skinner, when courts do not adhere to and
follow statutes, then that statute is unconstitutional, see
Skinner v- Switzer, 131 S. Ct., at 1298 (2011)
Petitioner in this case followed the letter of the law
at each mandamus prong of review and was denied. When Your
Petitioner meets every prong necessary for the Court of Criminal
Appeals review of a violation of law put into effect by this
High Court on the rights secured under the Fourteenth Amendment
to the United States Constitution, that mandamus standard of
review followed by Petitioner should be unconstitutional as
held in Skinner. ,@ 1298 Id.
Fraud On The Court
In addition, the court's denial of mandamus relief is
an attempt to affirm "Fraud on the Court," where the Justices
of the Fourth Court of Appeals have not performed their judicial
functions mandated by Anders - thus where the impartial functions
13.
of the court have been directly corrupted, see Bulloch v- United
States, 763 F.2d at 1121 n.3 (10th Cir.l985)(en bane)(Quoting
Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238,64
S.Ct.997,88 L.Ed.1250 (1944))
This Honorable Supremem Court of the United States has
established that "The historic power of equity to set aside
fraudulently begotten judgments," Hazel-Atlas, 322 U.S.,at 245,
64 S.Ct.,at 1001, is necessary to the integrity of the courts,
for "tampering with the administration of justice in [this]
manner ... involves far more than an injury to a single litigant.
It is a wrong against the institutions set up to protect
and safeguard the public."
In this case, the Fourth Court of Appeals is tampering
with the administration of justice, a right established by the
U.S. Supreme Court in Anders v. California to ensure that a
Petitioner's right to an appeal is secure and not discarded
by appointed counsel as frivolous when the appeal has merit.
Petitioner's calim not only affects his appeal but the
thousands of other indigent's on appeal. When a indigent files
his own pro se brief in disagreement to appointed counsel's
claim that the appeal is frivolous raising nonfrivolous grounds
and the Court of Appeals simply claims that the Petitioner did
not file a brief when records show otherwise is "Fraud on the
Court," and tampers with the administration of justice involving
far more than an injury to a single litigant. Id.
It has been determined by this High Court long ago, that
14.
"Fraud will void a judgment." see Stoddard v. Chambers/ 43 U.S.
284, 2 How. 284,11 L.Ed.269 (U.S. Mo.1844)
Your Petitioner asks this Honorable High Court to hold
the fraudulently obtained judgments, brought under mandamus
review proceedings and ignored, void and issue an Order directing
the Court of Criminal Appeals of Texas to review and grant the
relief requested therein.
Laches Not Applicable
The Court of Criminal of Texas gives no reason for its
white-card denial of the mandamus.
The only reasonable and rational cause for denying the
mandamus would be the respondents asserting the defense of laches
which would ultimately fail after review of the mandamus in
its entirety.
In Carrio, the State in determing laches has a three (3)
prong test to prove whether it applies to the claim.
It is the burden of the State to:
1) make a particularized showing of prejudice,
2) show that the prejudice was caused by the
petitioner having filed a late petition,and
3) show that the petitioner has not acted with
reasonable diligence as a matter of law.
The Court of Criminal Appeals explained that the type
of prejudice that must be shown is prejudice in its ability
to respond to the allegations in the petition. Ex parte Carrio,
992 S.W.2d 486 (Tex.Crim.App.1999)
15.
After the filing of the "Pro Se Appellant's Brief" the
State's Attorney responded to the Pro Se Brief filing three
(3) motions for extensions of time to answer the brief filed
by Appellant.
The Fourth Court of Appeals cannot make a particularized
showing of prejudice and is the only way to defeat the mandamus
petition. The Court of Criminal Appeals states that "The doctrine
of laches concerns prejudice/ not mere passage of time. CarriO/
992 S.W.2d at 488 n.2,3(Tex.Crim.App.1999); see also Strahan
v- Blackburn/ 750 F.2d at 443{5th Cir.1985)
The Fourth Court of Apppeals ministerial duty would be
to review the "Appellant's Pro Se Brief and State's Brief® on
file as mandated by this Honorable Court in Anders. See Anders
v. California, 386 U.S. 738 (1967)
If at any, prejudice is present in this case it would
be the Appellant not being able to take advantage of new case
law or changes in the law since the filing of his brief.
16.
Petitioner has pursued a petition for writ of certiorari
seeking review of a judgment of a lower state court that is
subject to discretionary review by the state court of last
resort via writ of mandamus on a courts denial of an important
federal question in a way that conflicts with relevant decisions
of this Court's mandates in the Anders v. California procedures
imposed on all State's.
The State court of last resort ignored the fraud involoved
in this case as well as the U.S. Supreme Court's precedent on
review of an Anders Brief/ by denying relief on mandamus review.
CONCLUSION
The Court of Criminal Appeals of Texas has rendered the
mandamus statute unconstitutional after Petitioner met the standard,
The petition for a writ of certiorari should be granted.
Respectfully submitted,
Date:
17.
APPENDIX - A
OFFICIAL NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS
P O. UOX 12308. CAPITOI- STATION. AUSTIN^TEXAS 78711
-i-— irs-i V-. • ■-■ '■'%{.>vx>7~
OFFICIAL BUSINESS v>«w «•*«<:*•• o*'" "^
STATE OF TEXAS
PENALTY FOR
$ 00.26s
3/4/2015 r-KiVAifcUSE EfiSPigW ^ "^ v: r' '' -'-'-
mii ce HIRAM Tr. Ct.^0. " ' r ■ '•' -||»¥[\-4Oiiif i^
On this day, the original application for writ of mandamus has been received and
presented to the Court. Abel Acosta. Clerk
HIRAM MILES
CLEMENTS UNIT - TDC# 785448
S601 SPUR 591
AMARILLO.TX 79107-9606
iEBHSB 73107
OFFICIAL NOTICE FROM COURT OF CRIMINAL APPKALS OF TEXAS
P.O. BOX 12308. CAPITOL STATION, AUSTIN. TEXAS 78ZI1
OFFICIAL BUSINESS
STATE OF TEXAS
PENALTY FOR "$ 00.265
3/18/2015
USE
'.•/.'LI: O ! ROM ZIP CODE '? i K'
MILES, HIRAM Tr. Ct. WR-46,247-12
This is to advise that the Court has denied without written order motion for leave to
file the original application for writ of mandamus.
Abel Acosta, Clerk
HIRAM MILES
CLEMENTS UNIT - TDC# 785448
9601 SPUR 591
AMARILLO, TX 79107-9606
N3B 73iO7
COURT OF APPEALS
COURT OF APPEALS DETRICl
SCHAEFER, CLERK
September 18,1998
Raymond E.Fuchs
ATTORNEY AT LAW
Washington Square Bldg., Suite 101
800 Dolorosa Street
San Antonio, TX 78207
Hiram Miles
TDCJ-ID No. 785448
Hughes Unit
Rt. 2, Box 4400
Gatesville, TX 76597 -
Edward F. Shaughnessy, HI
Assistant Criminal District Attorney
Bexar County Justice Center
300 Dolorosa, Suite 4025
San Antonio, TX 78205-3030
SS£S~
Style: Hiram Miles
v.
The State of Texas
Very truly yours,
HERB SCHAEFER, CLERK
Apryl Stirling, Deputy Clerk
APPENDIX -
OPINION
No. 04-97-00313-CR
Hiram MILES,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th Judicial District Cou£ Be** County, Texas
Trial Court No. 96-CR-0010
Honorable SharonMacRae, JudgePresidmg
Opinion by: Karen Angelini, Justice
Sitting: Tom Rickhoflf, Justice
Paul W. Green, Justice
Karen Angelini, Justice
Delivered and Filed: March 3,1999
AFFIRMED
Hram Mile, was convicted by jo* of murder and sentenced ,o life imprisonment.
^.
.appointed attorney has filed a brief in which he raises two arguable points of error, but
73S <,«* ** v. »*. "3 S.W.2d 807 CTex. Crim. App. im The brief meets the
, Counselhasprovided Miles wiU.acopy of *e brief and advised him of ,s
O4-97-OO313-CR
right to review the record and file a pro se brief. Nichols v. State, 954 S.W.2d 83, 85 (Te*
App—San Antonio 1997, no pet.). Miles has not filed a brief
After reviewing the record and counsel's brief, we agree that the appeal is frivolous and
without merit. Thejudgment ofthe trial court is affinned, and counsel's motion to withdraw is
granted. Nichols, 954 S.W.2d at 86.
Karen Angelini, Justice
BO NOT PUBLISH
-2-
* * *
JUDGMENT
No. 04-97-00313-CR
Hiram ROLES,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 96-CR-0010
Honorable Sharon Macrae, Judge Presiding
BEFORE JUSTICE RICKHOFF, JUSTICE GREEN, AND JUSTICE ANGELINI
In accordance with this court's opinion of this date, the judgment of the trial court is
AFFIRMED, and the motion to withdraw as counsel is GRANTED.
SIGNED March 3, 1999. /
KAREN ANGELINI
JUSTICE
APPENDIX - D
July 20,1998
No. 04-97-00313-CR
Hiram MILES,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 96-CR-0010
Honorable Sharon MacRae, Judge Presiding
ORDER
Appellant's attorney filed an^briefin this appeal Andersv O , filed a motion
738 (1967) Appellant has asserted his right to file apm se briefand on July 9,
to obtain a copy of the record.
We therefore ORDER the District Clerk of Bexar County to
dupUcate copy «^*"&
due 30 days after appellant's bnef is filed.
It is so ORDERED on July 20, 1998.
W WITNESS WHEREOF, I have hereunto set my hand and affixedJU©
on this 20th day ofJuly, 1998. ^=
APPENDIX - E
MD. 96-CR-0010-W3
EX PARTE § IN THE DISTRICT C0DRT
§ 290th JUDICIAL DISTRICT
HIRAM MILES § BEXAR COUNTY' TEXAS
ORDER
Applicant, Hiram Miles, has filed an application for post-
conviction writ of habeas corpus under the provisions of article
11.07 of the Texas Code of Criminal Procedure, collaterally
attacking his conviction in cause number 96-CR-0010 See Tex. Code
Crim. Proc. Ann. art. 11.07 (Vernon Supp. 1999).
History nf. the Case
On April 3, 1997, after a trial by jury, Applicant was
convicted of the felony offense of murder and punishment was
assessed at life imprisonment in the Texas Department of Criminal
Justice institutional Division. The Fourth Court of Appeals
affirmed applicant's conviction in appellate cause number 04-97-
00313-CR. Applicant filed an initial application for writ of
habeas corpus on January 18, 2000. The Court of Criminal Appeals
denied the writ without a hearing on August 16, 2000, under CCA
number 46,247-01. Applicant filed a second application for writ of
habeas corpus on July 31, 2000. (Cause Number 1996-CR-0010-W2).
This application for writ of habeas corpus was filed on September
18, 2000, and seems to supplement Applicant's second application.
Allegations of Applicant
l. Applicant alleges that his Sixth and Fourteenth Amendment
rights were violated under the United States Constitution because
the Fourth Court of Appeals failed to consider Applicant's pro se
brief..
Pi tidings of Fact
1. Applicant filed an initial writ of habeas corpus on January
18, 2000. A second application for writ of habeas corpus was filed
on July 31, 2000. The Court of Criminal Appeals denied applicant's
initial writ of habeas corpus on August 16, 2000, after Applicant
filed a second application. The instant application appears to
supplement his second application for writ of habeas corpus.
2. Ray Fuchs represented the Applicant on Appeal. Mr. Fuchs
filed an affidavit on March 7, 2000, which was attached to the
Court's order on Applicant's initial writ of habeas corpus as
Attachment II. The affidavit is also germane to the allegations
raised in the instant application for writ of habeas corpus.
(Attachment I).
3. Mr. Fuchs filed an Anders brief with the Fourth Court of
Appeals stating that he could not find any arguable points of
error. The Fourth Court of Appeals found the brief to be
sufficient under >n^rB ,r California. 386 U.S. 738 (1967) and High
v. State. 573 S.W.2d 807 (Tex.Crim.App. 1978). Mr. Fuchs sent the
Applicant a copy of the brief along with an explanation of
Applicant's appellate rights and deadlines.
4. in a letter dated September 18, 1998, Fourth Court of
Appeals acknowledges receiving a copy of Applicant's pro se brief.
(Applicant's Application Attachment 4).
5. On March 3, 1999, the Fourth Court of Appeals issued an
opinion under appellate cause number 04-97-00313-CR affirming
Applicant's conviction. The opinion states that Applicant did not
file a pro se brief. The Fourth Court of Appeals also granted Mr.
Fuch's motion to withdraw as counsel of record. The Fourth Court
of Appeal issued a mandate from this opinion on May 5, 1999.
6. The Court finds that the Fourth Court of Appeals did not
consider Applicant's pro se brief.
CONCLUSION OF LAW
1. Since the instant application for writ of habeas corpus
is, Essence, a supplement to Applicant's second writ of habeas
corpus, which was filed before the final disposition of Applicant's
3
initial writ of habeas corpus, it is not barred under section 4 of
the article 11.7 of the Texas Code of Criminal Procedure. See Tex.
Code Crim. Proc. art. 11.07(4) (Vernon's 2000).
2. The Fourth Court of Appeals opinion on the instant case
fails to take into consideration Applicant's pro se brief filed on
September 18, 1998, against the reasoning of Anders v. California,
386 U.S. 738 (1967) and High v. State, 573 S.W.2d 807
(Tex.Crim.App. 1978) and their progeny. Accordingly, Applicant has
produced an unresolved fact relevant to the legality of his
confinement. The Court recommends that this writ of habeas corpus
be GRANTED and the cause be remanded to the Fourth Court of Appeals
so that it can take Applicant's pro se brief into consideration.
ORDERS
The District Clerk of Bexar County, Texas, is hereby ordered
to prepare a copy of this document, together with any attachments
and forward the same to the following person by mail or the most
practical means:
a. The Court of Criminal Appeals
Capitol Station
Austin, Texas 78711
b. Hon. Susan D. Reed
Criminal District Attorney
Bexar County Justice Center
Bexar County, Texas 78205
c. Hiram Miles
TDCJ-ID#784448
3060 FM 3514
Beaumont, Texas 77705
/f ' 2000
Signed this _7_ day of
JUDGE PRESIDING