Medrano, Edward Fernandez ( 2015 )

PD-0718&0719-15
RECEIVED m
COURT OF CRIMINAL APPEALS
Edward Medrano #1790103
Dalhart Unit TDCJ JUN 11 2015
11950 FM 998
Dalhart, Texas 79022
AbelAcosta,Clerk
June ,.2015
Abel Acosta
P.O. Box 12308/ Capitol Station
Austin, Texas 78711-2308
RE: Appellate Cause Nos. 11-12-00222-CR & 11-12-00223-CR
Trial Court Cause Nos. CR-35988 & CR-36058
Sub: Motion for Out-Of-Time. Pro Se Petition for Discretionary
Review with Attachment-A
Dear Clerk:
Enclosed please find for filing Petitioner's Motion for Out-Of-
Time Pro Se Petition for Discretionary Review. Please file date
stamp and bring to the attention of the Court.
Also enclosed, is a copy of this letterhead. Please file date same
and return in the provided self addressed stamped envelope.
Thank you for your assistance on this matter.
Sincerely, Cn/|DT ^{-£0 IN
CRIMINAL APPEALS
Edward Medrano #1790103 G ^Cos^. C/erk
Petitioner Pro Se
EFM/
cc: Teresa Clingman, 500 N. Loraine, 2nd Fl., Midland, Texas 79701
FILE
Enclosures: Copy of letterhead
Self addressed stamped envelope
Edward Medrano #1790103
Dalhart Unit TDCJ
11950 FM 988
Dalhart, Texas 79022
June , 2015
Abel Acosta
P.O. Box 12308, Capitol Station
Austin, Texas 78711-2308
RE: Appellate Cause Nos. 11-12-00222-CR & 11-12-00223-CR
Trial Court Cause Nos. CR-35988 & CR-36058
Sub: Motion for Out-Of-Time Pro Se Petition for Discretionary
Review with Attachment-A
Dear Clerk:
Enclosed please find for filing Petitioner's Motion for Out-Of-
Time Pro Se Petition for Discretionary Review. Please file date
stamp and bring to the attention of the Court.
Also enclosed, is a copy of this letterhead. Please file date same
and return in the provided self addressed stamped envelope.
Thank you for your assistance on this matter.
Sincerely,
Edward. Medrano #1790103
Petitioner Pro Se
EFM/
cc: Teresa Clingman, 500 N. Loraine, <§nd Fl., Midland, Texas 79701
FILE
Enclosures: Copy of letterhead
Self addressed stamped envelope
N0._ _
IN THE
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
EX PARTE § ORIGINATING IN THE 238th
§ DISTRICT COURT IN AND FOR
EDWARD FERNANDEZ MEDRANO § MIDLAND COUNTY, TEXAS
MOTION FOR OUT-OF-TIME PRO SE
PETITION FOR DISCRETIONARY REVIEW
On Appeal from the Court of Appeals
Eleventh District of Texas at Eastland
Appellate Cause Nos. 11-12-00222-CR & 11-12-00223-CR
TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW, Edward Fernandez Medrano, Texas Department of
Criminal Justice(TDCJ)-ID #1790103, Petitioner pro sein the above
captioned and styles cause, and files this Motion for Out-Of-Time
Petition for Discretionary Review(PDR). In support of this motion
Petitioner will show this Honorable Court the following:
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I..
STATEMENT OF THE CASE
Petitioner was indicted on May 14, 2009, and then again on
June 3, 2009, for the offense of "Indecency With A Child By Expo
sure" in Cause No. CR-35,988' and for the offense of "Indecent Ex
posure To A Child" in Cause No. CR-36,058. The parties agreed to
consolidate te cases for trial.
The jury found Petitioner "guilty" in each indictment, and
assessed punishment at confinement for three years for the first
indictment, two years for the first count in the second indictment,
three years for the second count in the second indictment, and two
years for the third count in the second indictment. However, the
trial court suspended the imposition of Petitioner's sentence as
to the third count in the second indictment, placing Petitioner
on community supervision for a period of ten years.
The State filed a motion under Sec. 3.03 of the Penal Code
in which it sought to cumulate the four sentences assessed against
Petitioner. Penal § 3.03(West Supp. 2013). The trial court found
that each of the four offenses of which the jury convicted Peti
tioner was for indecency with a child under Sec. 21.11 and that
the victim in each case was a child younger than seventeen years
of age. The trial court granted the State's motion.
Petitioner appealed his conviction in the Court of Appeals
Eleventh District of Texas, appellate cause nos. 11-12-00222-CR &
11-12-00223-CR. The court affirmed the case on July 3, 2014, with
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II.
TIMELINES
The Texas Rules of Appellate Procedures(TRAP), Rule § 48.4
provides that:
In criminal cases, the attorney representing the defendant on appeal
shall, within five days after the opinion is handed down, send a copy
of the opinion and judgment, along with notification of the defend
ant's rights to file a pro se petition for discretionary review un
der Rule 68. This notification shall be sent certified mail, return
receipt requested, to the defendant at his last known address. The
attorney shall also send the court of appeals a letter certifying his
compliance with this rule and attaching a copy of the return receipt
within the time for filing a motion for rehearing. The court of ap
peals shall file this letter in its record of the appeal, (eff. Sept.
1, 2007).
The deadline for filing Petitioner's pro se PDR was thirty
days after the court of appeals handed down its opinion and judg
ment affirming the conviction July 3, 2014, pursuant to Id., Rule
§ 68.2. Thus, causing the deadline date to reflect as being due
on or before August 2, 2014. Petitioner has not requested an Out-
Of-Time pro se PDR, nor has he requested an extension of time to
file a pro se PDR.
Petitioner's one-year period of limitations pursuant to the
Antiterrorism and Effective Death Penalty Act(AEDPA) as contained
in 28 U.S.C. § 2254(d), provides in part:
(1) A one-year period of limitations shall apply to an application
for a writ of habeas corpus by a person in custody to the judg
ment of a State court. The limitation period shall run from the
latest of-
(A) the date on which the judgment became final by the conclu
sion of direct review or the expiration of the time for
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seeking such review;
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligance.
III.
STATEMENT OF THE FACTS
Petitioner's request for a Out-Of-Time pro se PDR is based
upon the following facts:
(a)'Petitioner sent inquiry to the court of appeals on his own
volition, May 27, 2015, requesting status of his appeal, (see Ex-
A, carbon copy of same);
(b) On May 29, 2015, Petitioner received a copy of the court of
appeals "Memorandum Opinion" from a family member, VIA mail;
(c) On June , 2015, Petitioner received notification from the
court of appeals that, his appeal had been denied and the convic
tion had been affirmed July 3, 2014. (see Exhibit B*);
(d) To date, appellate counsel has failed to:
(1) forward a copy of the Appellant and State's Briefs;
(2) notify Petitioner of the court of appeals' "Memorandum
Opinion" and judgment- or forward copy of same;
(3) Notify Petitioner of his right to file a pro se PDR,
the deadline for filing same, possible grounds for review
and their merits, and delinating the advantages and disad
vantages of any further review;
* Retyped copy of same.
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(4) comply with Tex.R.App.P., Rule § 48.4; and
(5) comply with the court of appeals' request for a letter
certifying compliance with said rule, and a copy of return
receipt due on or before July 18, 2014.
(e) Appellate counsel's deficient preformance has deprived Pe
titioner of his right to file a pro se PDR;
(f) Had it not been for appellate counsel's deficient preform
ance, Petitioner would have timely filed a pro se PDR;
(g) Appellate counsel's deficient preformance has caused the
forfeiture of approximately 70% of the AEDPA one-year period of
limitations as contained in 28 U.S.C. § 2254(d);
(g) Petitioner has been denied his Sixth Amendment right to
effective assistance of appellate counsel;
(h) The TDCJ Dalhart Unit's mail room log will not reflect, or
indicate that, Petitioner has ever received any incoming mail ei
ther certified or not, return receipt, correspondence from the
appellate counsel or his office; and
(i) Petitioner was not informed that the court of appeals had
issued: its "Mandate" until June 3, 2015. VIA In-Cell-Phone-family.
ARGUMENT
Although there is no right to discretionary review, an ap
pellant ordinarily has a right to file a PDR in an attempt to
persuade the Court of Criminal Appeals to exercise their discre
tion. Losing the right to file a pro se PDR constitutes the de
privation of that entire proceeding. Ex parte Crow, 180 S.W.3d
135, 138 (Tex.Crim.App. 2005).
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The United States Supreme Court in Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674(1984), established a
federal standard for determining whether an attorney rendered ef
fective assistance. The Strickland test even applies to an attor
neys preformance in handling an appeal. See Evitts v. Lucey, 469
U.S. 387, 105 S. Ct. 830, 83 L.Ed.2d 821(1985)(due process requires
that a defendant have effective assistance on his first appeal).
An appellate attorney has the duty to inform appellant of the
result of the appeal and that he may, on his own volition, pursue
discretionary review in this Court. Ex parte Wilson, 956 S.W.2d 25,
27 (Tex.Crim.App. 1997); see.also TRAP, Rule § 48.4.
If appellate counsel's action or inaction denies a defendant
his opportunity to prepare and file a petition for discretionary
review, that defendant has been denied his Sixth Amendment right
to effective assistance. U.S.C.A. Const.Amend. 6; Vernon's Ann.
Texas Code of Criminal Procedure(CCP), art. 26.04; Id., at 26.
Most recently, in Ex parte Crow, Id., at 138, this Court held
that, the failure of appellate counsel to follow the requirements
of Wilson, will be measured by the Sixth Amendment standard for
prejudice that is more "limited" than the ordinary standard that
Strickland calls for. Id. This Court applied this "limited" pre
judice requirement to the failure of appellate counsel to inform
Petitioner of his right to pursue a pro se PDR, noting that al
though an appellant has no right to discretionary review, he has
an absolute right to "attempt to persuade this Court to exercise
its discretion." Crow, 180 S.W.3d at 138. see also CCP art. 44.45
(d) (1) ; TRAP 66.1.
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Petitioner pled "not guilty," filed his "notice of appeal,"
and appealed his conviction. This strongly militates in favor of
finding that the Petitioner would in fact have proceeded further
in continuing his appellate process and filed a pro se PDR as
well, as alleged in his affidavit. See Ex parte Owens, 206 S.W.3d
670, 676 (Tex.Crim.App. 2006)(see Exhibit C).
Yet due to ineffective assistant of appellate counsel, Peti
tioner has lost his right under the Sixth Amentment to file a PDR
in hopes of persudaing this Court to exercise their discretion.
Id., 956 S.W.2d at 26.
Petitioner need not show that the proceeding the counsel's
ineffectiveness deprived him of would have resulted in a favorable
outcome; he need only show that he was deprived of that proceeding
and he would have availed himself of the proceeding had his
counsel's conduct not caused the forfeiture of the proceeding in
question. Id., 180 S.W.3d at 138;^ See also Ex parte Owens, 206
S.W.3d at 676.
CONCLUSION
Petitioner's request for an Out-Of-Time PDR, is not for or a
form of delay, but is so that Petitioner may be afforded his right
and a fair opportunity to petition this Court to exercise their
discretion for review and exhaust all of his post-conviction rem-
idies made available by law. A right that has been forfeited at no
fault of Petitioner, but due to ineffective assistance of appell
ate counsel, in failing to comply with Id., Rule § 48.4.
Therefore, this Court should grant Petitioner's motion for an
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Out-Of-Time PDR in hopes of persuading this Honorable Court to re
view the issues Petitioner will present to the Court.
The Court should also reinstate the AEDPA's one-year limita
tions to reflect this Court's calculations for a renewd begin
date so that Petitioner has a fair and impartial outcome to this
proceeding.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Petitioner prays this Honor
able Court grant this Motion for Out-Of-Time PDR so that he may be
afforded an opportunity to petition this Honorable Court for their
discretionary review on issued presented and reinstate the AEDPA's
one-year limitations period lost to Petitioner at no fault of his
own. So prayed.
Respectfully submitted,
Edward Medrano #1790103
Dalhart Unit TDCJ
11950 FM 998
Dalhart, Texas 79022
Petiitoner pro se
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above
Motion for Out-Of-Time Pro Se PDR was sent to the State, VIA-Mail,
in accordance with the Texas Rules of Appellate Procedure, to:
Teresa Clingman, 500 N. Loraine, 2nd Fl. , Midland, Texas 79701.
Executed on this the day of June, 2015.
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Edward Medrano #1790103
Petitioner Pro Se
UNSWORN DECLARATION
I, Edward Medrano, TDCJ-ID #1790103, being presently incar
cerated in the Dalhart Unit of the TDCJ in Hartley County, Texas,
verify and declare, under penalty of perjury that I had read the
foregoing statements and facts contained within this petition and
the attached "Affidavit" and same are true and correct.
Executed on this the day of June, 2015.
Edward Medrano #1790103
Petitioner Pro Se
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ATTACHMENT-A
THE STATE OF TEXAS §
§
COUNTY OF HARTLEY §
AFFIDAVIT OF "EDWARD FERNANDEZ MEDRANO"
I, Edward Fernandez Medrano, affiant, first being duly sworn
hereby depose and say:
My name is Edward Fernandez Medrano, I am a resident of Texas
being presently incarcerated in the TDCJ Dalhart Unit. I am over
the age of twenty-one(21) and of sound mind. The following is a
true and correct, factual statement concerning the Motion for an
Out-Of-Time Pro Se PDR in connection with appellate cause numbers
11-12-00222-CR and 11-12-00223-CR.
"If my appellate attorney would have followed the strict re
quirements as outlined in the Texas Rules of Appellate Procedure,
Rule § , 48.4, and not only notified me that the court of appeals
had issued their decision and "Memorandum Opinion" in the denial
of my appeal but, informed me of my right to prepare and file a
pro se PDR, I would in fact have petitioned the Court of Criminal
for them to exercise their discretionary for a review of issues
presented, and timely continued with my post-conviction remedies
until fully exhausted.
Executed on this the day of June, 2015.
Edward Medrano #1790103
Petitioner Pro Se
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