Amaya, Reynaldo ( 2015 )

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COURT 02 CR|M|NAL APPEALS .L §§ l 5a l
JUL 2 1 2315
No. 1186977_A
' AbalAaosta,@lark _
EX PARTE § IN THE 185ch DISTRICT coURT
REYNALDo AMAYA § ~ OF
(Appiicam) § HARRIS coUNTY, TEXAS
APPLICANT’S OBJECTION AND DENIAL TO THE
STATE’S PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER.
AND COURT ORDER ADOPTING THE STATE’S PROPOSED FINDINGS OF FACT
AND ORDER WITH BRIEF IN SUPPORT
Applicant received the convicting court’s signed order on J unc 16, 2015. Applicant hurnny
and respectfully asks this Honorable Court to receive and consider this objection and denial, adopt
Applicant’s proposed findings of fact and conclusions of law, and conduct an evidentiary hearing
in order to resolve all the factual allegations claimed in the instant 11.07 Application, with an
emphasis on the unresolved designated issues of ineffective assistance of counsel.
Applicant objects to and generally denies the State’s Proposed Findings of Fact,
Conclusions of Law and Order, and the Court Order Adopting the State’s Proposed Findings of
Fact and Order, except where supported by the record. The convicting court’s conclusions of law
should be reviewed de novo, Ex parte Brown, 158 S.W.3d 449, 453 (Tex. Crim. App. 2005). This
Court is the ultimate factfinder for Applicant’s state writ of habeas corpus. Ex parte Reed, 271
S.W.3d 698, 727 (Tex. Crim. App. 2008); Texas Code of Criminal Procedure, Article ll.07, §
5. This Court is free to reject the convicting court’s findings if they are not supported by the
record. Ex parte Adams, 768 S.W.Zd 281, 288 (Tex. Crim. App. 1988). Therefore, Applicant
humny and respectfully urges this Court to patiently and carefully review Applicant’s ll.07
application and its supporting memorandum of law, supporting supplements/amendments and
respective memorandums of law, and all referenced exhibits.
Article 11.07, § 3(d), states in relevant parts: “If the convicting court decides there are
controverted, previously unresolved facts which are material to the legality of the applicant’s
confmement, it shall enter an order designating the issues of fact to be resolved. ”
In the instant state habeas corpus the convicting court did in fact enter an order on April
03, 2013, designating issues of “Whether the applicant was denied the effective assistance of
counsel at trial. ” (See Appendix A, State’s Proposed Order Dcsignating Issues). Please note that
this document was excluded from the documents listed to be transmitted to this Court. (See
Appendix B, State’s Proposed Findings of Fact, Conclusions of Law and Order). The convicting
court should state with particularity the evidence relied upon when making specific findings and
conclusions, therefore, it should include all supporting documentation in the habeas corpus record.
Ex parte OZivares, 202 S.W.3d 771, 773 (Tex. Crim. App. 2006).
To Applicant’s knowledge, said ordered designated issues have not been resolved nor has
trial counsel denied/disputed any of Applicant’s state habeas corpus factual allegations. Applicant
has not received any notification of the resolution of issues or denial/dispute of issues. The effect
of failing to deny an allegation operates as an admission. Federal Rules of Civil Procedure
8(b)(l)(B), 8(b)(6); Jones v. Lopez, 262 F. Supp. 2d 701 (W.D. Tex. 2001). Even if trial counsel
had denied/disputed Applicant’s habeas corpus factual allegations, her resignation (see Appendix
C, Supreme Court of Texas, Misc. Docket No. 13-9166) from the practice of law in lieu of
disciplinary actions lends support to Applicant’s factual allegations of ineffective assistance of
counsel. Ex parte Thompson, 153 S.W.3d 416, 419-20, n.2 (Tex. Crim. App. 2005). Moreover,
2
trial counsel infers ineffective assistance of counsel in her email to Applicant’s then girlfriend
(See Appendix D, Email of Attorney Kennitra M.Foote).
Applicant humny and respectfully requests an evidentiary hearing. When facts are in
dispute an evidentiary hearing is mandatory because the function of an evidentiary hearing is to
try issues of fact. Townsend v. Sain, 372 U.S. 293, 309 (1963). Applicant has repeatedly
requested an evidentiary hearing in his 11.07 supporting Memorandum of Law and other 11.07
supporting motions _§specihcally: Motion for Speedy Trial - Adjudication/Remedy (9-20-13);
Motion to Appoint Counsel (3-3-14); and Motion - Demand for Performance (5~13-14)). (See
Appendix E, Harris County District Clerk Activity Log). With the exception of the Motion to
Appoint Counsel, which the convicting court denied within one week, the convicting court remains
silent as to Applicant’s other motions. An evidentiary hearing is required because punishment
obtained in violation of the Constitution is intolerable and the “opportunity for redress, which
presupposes the opportunity to be heard, to argue and present evidence, must never be totally
foreclosed. ” Townsend, 372 U.S. at 322. Moreover, Applicant need only to satisfy one of the six
circumstances outlined in Townsend, supra. Petitioner avers that he satisfies: “(l) the merits of
the factual dispute were not resolved in the state hearing; (2) the state factual determination is not
fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state
court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of
newly discovered evidence; and (6) for any reason it appears that the state trier of fact did not
afford the habeas applicant a full and fair hearing. ” Townsend, 372 U.S. at 313. The record as a
whole shows that the convicting court refused to conduct a full and fair evidentiary hearing;
refused to facilitate the production of newly discovered material evidence of, but not limited to,
fabrication/tampering of evidence, fraud, perjury, and misconduct; and the fact-finding process
3
was inadequate because no response to Applicant’s ineffective assistance of counsel claims was
secured from trial counsel. The Supreme Court reversed the District Court’s dismissal of a habeas
corpus application because the lower court improperly refused to hold'an evidentiary hearing.
Townsend, 372 U.S. at 292. Applicant presented extensive evidence in the state court. Pike v.
Guarino, 492 F.3d 61 , 69 (lSt Cir. 2007); Applicant is entitled an evidentiary hearing because he
did not have an opportunity to develop a claim in the state court despite his due diligence. Winston
v. Pearson, 683 F.3d 489, 499-500 (4th Cir. 2012); Applicant is entitled to an evidentiary hearing
because the state did not provide a full and fair evidentiary hearing to develop the facts. Hall v.
Quan‘erman, 534 F.3d 365, 367-69 (5``h Cir. 2008); Applicant is entitled an evidentiary hearing
because he diligently sought to develop the factual basis for an ineffective assistance of counsel
claim in a state court. Barkell v. Crouse, 468 F.3d 684, 694-95 (10th Cir. 2006).
Therefore, Applicant humbly and respectfully submits alternative findings of fact and
conclusions of law and prays that this Honorable Court adopts said findings and conclusions and
therefore grant habeas corpus relief.
a) That the state proposed to the convicting court designated issues of ineffective assistance
of counsel. The convicting court adopted the state’s proposed designated issues and issued
an order designating issues of ineffective assistance of counsel. To Applicant’s knowledge,
the designated issues of ineffective assistance of counsel remain unresolved. Therefore, by '
definition of Art. 11.07, § 3(d), “controverted, previously unresolved facts which are
material to the legality of the applicant’s confmement” still exist. All of Applicant’s
ineffective assistance of counsel claims must be addressed and resolved, regardless of
whether habeas corpus relief is granted or denied. Clisby v. Jones, C.A. 11 (Ala.) 1992,
960 F.2d 925; Turner v. Wainwright, C.A. 5 (Fla.) 1977, 550 F.2d 1012; Stinson v. State
ofAlabama, 5 Cir. 1977, 545 F.2d 485; Pitchess v. Davis, U.S. Cal. 1975, 95 S. Ct. 1748,
421 U.S. 482.
b) That in determining whether an applicant received ineffective assistance of counsel, the
Court of Crirninal Appeals in Hemandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App.
1999) adopted the Slrickland standard (Strickland v. Washington, 466 U.S. 668 (1984)).
c) That Applicant has shown in his 11.07 application and all associated documents, by a
preponderance of evidence, that trial counsel’s performance was deficient by making
“errors so serious thatl counsel was not functioning as the ‘counsel’ guaranteed by the Sixth
Amendment. ” Strickland, 466 U.S. at 687. The presumption of correctness is overcome
when clear and convincing evidence demonstrates petitioner’s Sixth Amendment rights
were violated, contrary to the findings by a state court. Titlow v. Burt, 680 F.3d 577 , 591-
92 (6th Cir. 2012).
d) That Applicant has established prejudice by showing that “a probability exists, sufficient
to undermine [the court’s] confidence in the result, that the outcome would have been
different but for counsel’s deficient performance ” Ex parte Amezquita, 223 S.W.3d 363,
366 (Tex. Crim. App. 2006) (quoting Ex parte White, 160 S.W.3d 46, 49 (Tex. Crim.
App. 2004)); see also Strickland, 466 U.S. at 694. Moreover, Applicant has established
resulting prejudice at the Punishment Phase by showing that the sentencer Would have
rendered a more favorable sentence. Ex parte Rogers, 369 S.W.3d 858, 864-65 (Tex.
Crim. App. 2012). Trial counsel’s “errors were so serious as to deprive [Applicant] of a
fair trial, a trial whose result was reliable. ” Strickland, 466 U.S. at 687.
e) That when an applicant’s habeas corpus factual allegations of ineffective assistance of
counsel are in dispute, then an evidentiary hearing is mandatory to try issues of fact.
Townsend, supra.
f) That when an applicant’s habeas corpus factual allegations of ineffective assistance are
not in dispute, then the applicant is entitled habeas relief because: (l) a “probability exists
[. . .] the outcome of the trial would have been different but for counsel’s deficient
performance ” (Ex parte Amezquita, supra); (2) “ the sentencer would have rendered a more
favorable sentence ” Ex parte Rogers, supra.
g) That Applicant was denied of his guaranteed and protected rights of the Sixth
Amendment’s effective assistance of counsel and the Fourteenth Amendment’s due process;
thereby, Applicant is illegally restrained of his liberties. United States Constitution.
h) “There is no higher duty of a court, under our constitutional system, than the careful
processing and adjudication of [applications] for writs of Habeas Corpus, for it is in such
proceedings that a person in custody charges that error, neglect, or evil purpose has
resulted in his unlawful confinement and that he is deprived of his freedom contrary to
law...” Harris v. Nelson, 394 U.S. 286, 291-92, 89 S. Ct. 1082 (1969).
i) The presumption of correctness is impossible where a state court fails to adjudicate
claims on the merits “by refusing to facilitate the production of new, material evidence. ”
(Winston v. Pearson, 683 F.3d 489, 506 (4th Cir. 2012)); the presumption of correctness
is overcome when clear and convincing evidence demonstrates petitioner’s Sixth
Amendment rights were violated, contrary to the findings by a state court. (Titlow v. Burt,
680 F.3d 577, 591~92 (6th Cir. 2012)); the presumption of correctness is overcome when
clear and convincing evidence of defects in the factfinding process is demonstrated (Taylor
v. Maddox, 366 F.3d 992, 1008 (9th Cir. 2004)).
5
Applicant respectfully requests appointment of counsel to assist with an evidentiary
hearing.
For these reasons, Applicant humbly and respectfully requests this Honorable Court to
adopt Applicant’s proposed findings of facts and conclusions of law and conduct an evidentiary
hearing in order to resolve all the factual allegations claimed in the instant 11.07 Application and
to facilitate new, material evidence presented therein.
Respectfully submitted,
Po unsky Unit
3872 FM 350 South
Livingston, Texas 77351-8580
APPENDIX A
STATE’S PROPOSED ORDER
DESIGNATING ISSUES
rtified DocumentNumber: 55251103 - Page 2 of 5
C
451
Cause No. 1186977-A
EX PARTE § . lN THE 185'l'H DISTRIC"l_`` COURT
§ ‘ OF
REYNALDO AMAYA, § HARRIS COUNTY, TEXAS
Applicant
STATE’S PROPOSED ORDER DESIGNATLNG ISSUES
Having reviewed the applicant’s application for writ of habeas corpus, the Court finds
that the following issue needs to be resolved in the instant proceeding:
l. Whether the applicant was denied the effective assistance of counsel at trial
Therefore, pursuant to Article ll.07,_ §S(d), this Court will resolve the above-cited issue
and then enter findings of fact
The clerk of chc Court is oRi)EREi) _NL to transmit ar this time any documean in the '
above-styled case to the Court of Criminal Appeals until further order by this Court
By the following signature, the Court adopts the State’s Proposed Order Designafing
Issuei.
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Appendix A
State’s Proposed Order Designating Issues
Danp 1
APPENDIX B
STATE’S PROPOSED FINDINGS OF
FACT CONCLUSIONS OF LAW AND ORDER
CHRIS DANIEL
HARRIS CouNTY Dis'rRicr CLERK``
June l l, 2015
REYNALDO AMAYA
#1607287 POLUNSKY UNIT
3872 FM 350 SOUTH ,
LIVINGSTON, TEXAS 77351
To Whom lt May Concern:
Pursuant to Article 11.07 of the Texas Code of Criminal Procedure, please find enclosed
copies of the documents indicated below concerning the Post Conviction Writ filed in
cause number 1 186977-A in the l85th ``District Court.
[:I State’s Original Answer Filed ,
|:] Afndavit , .
13 Court Order Dated ,
m Respondent’s Proposed Order Designating Issues and Order For Filing Affidavit.
[XI Respondent’s Proposed F indings of Fact and Order June"l 0, 2015
|:] Other y
Sinc ely
Leslie ernandez, D
Criminal Post Trial
EnClOSUI€(S) - STATE’S PROPOSED FINDINGS OF FACT AND ORDER
v Appendix B
State’s Proposed Findings of Fact Conclusions ;of Law and Order
Page l
1201 FRANi768 S.W.2d 281 (Tex. ``Crirn.
App.. ist); Expara Empy, 757 s.w.zd 771, 775 (rex. crim App. 1988).
ORDER
THE CLERK lS ORDERED to prepare ajtranscript of all papers filed in cause
number 1186977-A, and transmit same to the Coi:irt of Crirninal Appeals as provided
art. 11.07 (West 2013). The transcript shall include
\
!
by TEX. CODE CRrM. PRoc. AN_N.
certiiied copies of the following documents:
'Appendix B
State’s Proposed Findings of Fact Conclusions of Law and Order
Page 2 » »
7.
the application for writ of habeas corpus and attachments;
the State’s Original Answer; i
- the Court’s order;
the State’s ProposedFindings of Fact, Conclusions of Law and
Order;
the applicant’s Proposed Findings of
(if wr);
'Fact and Conclusions of Law
the indictment, docket sheets,‘ and judgment and in cause number
1186977; and
the appellate opinion
`` Tl-IE``, CLERK is further ORDERED to
77351; and to counsel for the State, Farnaz Faiaz
Te;xas 77002.
By the following signature, the Court'ad
Findirigs of F act and Order iri Cau
erNED this _\D_ day Or 311
5 faa
send a copy of this order to_ the
l
applicant Reyiiaido Amiya, rch # i607287, 31s72 FM 350 south, Livingston, TX
1201 Franlclin, Suite 600, Houston,
§ opts the State’s Proposed
se Nurnber 1186977-A.
. 2015.
PREsiDiNG jnch
2
State’s Proposed Findings
l
i
Appendix B '
of Fact Conclusions of Law and Order
Page 3
b §§ » ``.
§ § 4 ' _ §§ jr"'q"~)
stiff-is csl"f" ~'"
No. 1186977__A /"~*~ij~mici”?i
EX PARTE § iN_.THE 185th DisTRIg;T Coi~i; -»
F L"``q"°:=\\.
§ OP§
REYNALDo AMAYA,
Applicant § italian coUNTY, TEXAS
cERTIFrcATE oF sERvIcE
Service has been accomplished by sending a copy of this instrument to the
following address: ;
Reynaldo Amaya
TDC] # 1607287
3872 FM 350 south §
Livingston, TX 77351 §
SIGNED this 3rel day ofjune, 2015.
Respectfully submitted,
Farnaz Faiaz
Assistant District Attorney
v Harris County, TeXas
1201_Franklin Street
Houston, Texas 77002
(7 13) 755-6657 ``
Texas Bar I.D. #24063791
AppeiidixB g 3
l State’s i’roposed Findings of Fact Conclusions of Law and Order
".X\(%"\ Page 4
APPENDIX C
SUPREME COURT OF TEXAS,
MISC. DOCKET NO. 13-9166
ORDER OF THE SUPREME COURT OF TEXAS
MISC. DOCKET NO. 13-9166
IN THE MATTER OF KENNITRA M. FOOTE
The Court has reviewed the Motion for Acceptance of Resignation as Attomey and
Counselor at Law in Lieu of Disciplinary Action of Kennitra M. Foote (the Motion) and the
`` Response of the Office of the Chief Disciplinary Counsel for the Commission for Lawyer,
Discipline _(the Response). The Court concludes each meets the requirements of Part X of the
Texas Rules of Disciplinary Procedure. Therefore, the Court deems the professional misconduct
detailed in the Response conclusively established for all purposes The Court further concludes
that acceptance of the resignation of Kennan M. Foote is in the best interest of the public and
the profession.
Therefore, the law license of Kennitra M. Foote of Houston, Texas, State Bar Card
Number 24029552 is canceled The Court notes that Kennitra M. Foote has already surrendered
her Texas bar card and Texas law license to the Clerk of this Court.
Consequently, Kennitra M. Foote is prohibited from practicing law in the State of Texas.
She is prohibited from holding herself out as an attorney at law, performing legal services for
others, giving legal advice to others, accepting any fee directly or indirectly for legal services,
appearing as counsel or in any representative capacity iri any proceeding in any Texas court or
before any Texas administrative body (whether state, county, municipal, or other), or holding
herself out to others or using her name in any manner in conjunction With the words “Attorney at
Law,” “Counselor at Law,” or “Lawyer.”
Appendix C
Supreme Court of Texas, Misc. Docket No. 13-9166
' Pagel -
Additionally, Kennan M. Foote must immediately notify in writing each of her current
clients and opposing counsel of her resignation She shall also return any files, papers, unearned
monies and other property in her possession belonging to any client or former client to the
respective client or former client or to another attorney at the client’s or former client’s~request.
Kennitra M. Foote shall file with the Statewide Compliance Monitor,. State Bar of Texas, P.O.
Box 12487, Austin,``Texas 787l l, within thirty days of the date of this Order an affidavit stating
that all current clients and opposing counsel have been notified of her resignation and that all
files, papers, monies and other property belonging to all clients and former clients have been
returned. .
Finally, Kennitra M. Foote shall, within thirty days after the date of this Order, notify in
writing each justice of the peace, judge, magistrate, and chief justice of each court in which
Kennitra M. Foote has any matter pending of the terms of this Order, the style and cause number
of the pending matter(s), and the name, address and telephone number of the client(sj Kennitra
M. Foote is representing in court. Kennitra M. Foote shall file with thev Statewide Compliance
Monitor, State Bar of ”l``exas, P.O. Box 12487, Austin, Texas 787l l, within thirty days of the
date of this Order an affidavit stating that she has notified in Writing each justice of the peace,
judge, magistrate, and chief justice of each court in which he has any matter pending of the terms
of this Order, the style and cause number of the pending matter(s), and the name, address and
telephone number of the client(s) she is representing in Court.
CONDITIONS FOR REINSTATEMENT
As absolute conditions precedent for the reinstatement of Kennitra M. Foote, she shall
Misc. Docket No. l3-9166
Page 2
Appendix C
Supreme Court of Texas, Misc. Docket No. 13-9166
‘ Page 2
pay $4,953.00 in restitution to Alexander Genson, D.C.; $4,153.00 in restitution to Karen S.
Thomason, D.C.; 810,508.41 in restitution to Mark Witt; $27,981.90 in restitution to Hattie
Willi'ams Nneji; $63,920.48 in restitution to Obinna Nneji; $350.00 in restitution to Jacqueline
M. Strain; $4,000.00 in restitution to lohn Ross; and $2,300.00 in restitution to Melvin L. Jetson,
si. l
Kennitra M. Foote’s payments of restitution should be made by certified or cashier’s
check or money order, payable to Alexander Genson, D.C.; Karen S. Thomason, D.C.; Mark
Witt; Hattie Williams Nneji; Obinna Nneji; Jacqueline M. Strain; lohn Ross; Melvin L. letson,
Sr., and delivered to the Statewide Compliance Monitor, State Bar of Texas, P.O. Box 12487,
Austin, Texas 78711.
Misc. Docket No. 13~9166
Page 3
Appendix C
Supreme Court of Texas, Misc. Docket No. 13-9166
Page 3
so oRDERED this /_d__"/‘ day Of:\Ql,_.g¢¢~____ 2013
May/4
Nathhn L Hecht, Chief lustice
warn
Paul W. Green, Justice
Phii Johnson, Justiée
Om P- wllaji")
DonR. Willett, Justi e
EvaM M.Guzman, Justicy
winn ram
Debral-I. Lehrmann, Justice
Je S. oyd, Wiisticve/V'
John P. vi(i``ejdice
57/4-»-/ ,
Jg%re;ylV. ‘i$/rown, Justice
Misc. Docket No. 13-9166
Page 4
Appendix C
Supreme Court of Texas,Misc.DocketNo.13-9166
Page 4
APPENDIX D
EMAIL OF ATTORNEY
KENNITRA M. FOOTE
i'pfint ' ' Page l of l
Subject: FW: Reynaldo Amaya
From: Sherrie Carrol| (sherrie_carro||@yahoo.com)
To: e||a.22103@yahoo.com;
@Dafeass=e=i"mesdayr€‘eptembeHGFQ@MG-le-
Stella,
FYi
Let me know what you think
Sherrie
-vFenNaFded-Mecsa§e=~--
J»E:eme=élkeia nih=zi@lae§mai |-G-om=-=< ken niha@hehmail-.eeme~
To: Sherrie Carrol|
“¢Sent¢$aesaayq=§eptemee@§?ZQQB-LOAQMM~
Subject: Re: Reynaldo Amaya
Sherrie,
ln my honest opinion l believe that every case has some merit on appeal However,'with the level of evidence in
the case the grounds are going to be very weak. The appellate standard is based on, for the most part, the jury
z verdict The appellate court is going to respect that verdict except for the very few exceptions Where they set
aside the verdict in their review. They will still look at all of the facts and determine whether they would have
arrived at the same conclusion J;he-snl§aatherztlaings?in~myropinion,_yeiicould~loel<_~at»areanei?£eetavetasststanee~
anestunselsandgtheeaidmissientefetheeinteiview~tapeaverémyvobjeeti@n~ Other than that it will be a very Weak
_ v . _ Otherthanthat, Iwill callyouthis
appeal .
evening when things slow down
-Seet~faotn=my»Pahn-PFS=
Sheriie Cairoll Wrote:
Kennitra
l was wanting to know in your opinion does Rey have any good grounds for
an appeal
Sherrie
7l3-253~63 62 Appendix D
Email of Attorney Kennitra M. Foote
Page l
CERTIFICATE OF SERVICE
Service has been accomplished by mailing a copy of this instrument in the United States
Postal Service, postage prepaid on this the 17th day of July, 2015 , to the following address:
Court of Crirninal Appeals
Attn: Abel Acosta, Chief Deputy Clerk
Supreme Court Building
201 West 14th Street, Room 106
Austin, Texas 78701
Signed this 17th day of July, 2015,
Respectively submitted,