Olivares, Santiago Meliton ( 2015 )

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A T T E NT I 0 N tRitE((;IE~VlED ~N
©OORf Of CRIM1NAl APPEALS
To: Abel Acosta/Clerk
Court of Criminal Appeals /·JAN 09 2015
P.O. Box 12308
Austin, Tx 78711 /
No. 11749:1Abe~Aoosta, Clerk
Re: Santiago Olivares/Pro se
TDC # 1607304
Darrington Unit
59 Darrington Rd.
Rosharon, Tx 77583
Hon. Abel Acosta/Clerk, of the Court of Criminal Appeals.
Presented herein is a MOTION FOR LEAVE, with a WRIT OF MANDAMUS,
that concern the extreme delay of my Habeas Corpus that was filed
on September 10, 2012. Relator/Applicant, will show this Honor~
able Court the requirements and necessity to be granted Mandamus
relief.
Relator, however, is incarcerated and Pro se, and begs this
court to construe his mandamus format liberally not holding him
to the standards of lawyers. Relator has tried his best to follow
form and procedure.
LACK OF COMPLIANCE ON MANDAMUS
Petition was sufficient despite lack of complete compliance
with rules governing form. See In re Taylor, 28 S.W.3d 240.
RESPECTFULLY SUBMITTED
``12&1~
Santiago Olivares/Pro se
TDC # 1607304
Darrington Unit
59 Darrington Rd.
Rosharon, Tx 77583
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HABEAS TRIAL COURT No. 1174911-A
EX PARTE § IN THE COURT OF
SANTIAGO OLIVARES § CRIMINAL APPEALS
APPLICANT § AUSTIN, TEXAS
MOTION FOR LEAVE TO FILE AN APPLICATION FOR
"W R I T 0 F MAN D.A MUS"
To the Hon. Abel Acosta/Clerk, of the Court of Criminal Ap-
peals. Comes now Santiago Olivares, TDC inmate # 1607304, and
Pro se applicant seeking leave to file a WRIT OF MANDAMUS, and
in support of motion will show to wit:
I
STATEMENT OF FAC'I'£:
On September 10, 2012, Applicant filed a writ of habeas cor-
pus pursuant to Art. 11.07 of the TCCP., for post-conviction re-
lief. An ORDER DESIGNATING ISSUES(ODI), was signed on September
27, 2012. The ODI failed to order trial counsel to address the
claims in Applicant's 11.07, and has since been stagnant in the
habeas court.
II
APPLICANT'S PURSUIT OF HABEAS RIGHT
First, Applicant has been extremely patient with the court to
review and process his habeas 11.07, knowing full well of the
court being inundated with cases and habeas writs. However, it
has been over two years since the ODI, and no action has been ta-
ken on this 11.07. Applicant has tried an "Informal Resolution"
(Exhibit A-1), that was sent to the trial court on August 17,
2014. After hearing no response, Applicant then proceeded with a
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:...... ,_) ...
"MOTION TO COMPEL" (Exhibit A-2), sent to the court on October 5,
2014, receiving no response or action from the court.
III
INEFFECTUAL PROCESS OF HABEAS CORPUS
Applicant has been diligently patient in the hopes of process-
ing and proceeding his ha.beas corpus 11.07. However, 2 years in
holding Applicant's 11.07 with no action being taken is well be-
yond a violation of AppJicant's Due process rights under habeas
corpus.
Applicant has tried informal(Exhibit A-1), and formal resolu-
tions(Exhibit A-2), to try and reslove this issue. Applicant has
also requested for help from the Assistant District Attorney(ADA),
(Exhibit A-3 & A-4), who recommended the ODI to the court, with
no assistance coming from the ADA.
Applicant has claimed "Actual Innocence," and yet the habeas
court refuses to act. Applicant's only recourse is help from this
honorable court, and its duty to enforce the laws of the Texas
Constitution, Art. 11.07 of the TCCP., and the Due process rights
of Applicant under the United States Constitution(Please see Man-
damus for State & Federal law on Habeas Corpus).
P R A Y K.R·:'.
WHEREFORE, PREMISES CONSIDERED, Applicant prays this Honorable
Court will grant·the MOTION FOR MANDAMUS, and ORDER the habeas
court to proceed with Applicant's 11.07 within 90 days of re-
ceipt of the Mandamus.
RESPECTFULLY SUBMITTED
L``-=
Santiago Olivares/Pro se
TDC# 1607304
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CERTIFICATE OF· SERVICE
I hereby certify that a true and correct copy of the foregoing
MOTION FOR LEAVE, has been mailed on this `` day of~
I
201§. To:
Abel Acosta/Clerk AND ONE COPY 10: Presiding Judge
Court of Criminal Appeals 337th District Court
P.O. Box 12308 Capitol Station Harris County, Texas
Austin, Texas 78711 1201 Franklin, 15th floor
Houston, Tx 77002
Signed on this `` day of~, 201f.
RESPECTFULLY SUBMITTED
Santiago Olivares/Pro se
TDCJ # 1607304
Darrington Unit
59 Darrington Rd.
Rosharon, Tx 77583
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HABEAS CASE No. 1174911-A
TRIAL COURT No. 1174911
In re SANTIAGO OLIVARES
R E L AT 0 R
v.
PRESIDING JUDGE OF THE
337th DISTRICT COURT
IN HIS )~'HER OFFICIAL CAPACITY
R E S P 0 NDE NT
P E T I T I 0 N F 0 R WR I T 0 F MA N D A MU S
SANTIAGO OLIVARES/PRO SE
TDCJ # 1607304
DARRINGTON UNIT
59 DARRINGTON RD.
ROSHARON, TX. 77583
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IDENTIFICATION OF PARTIES AND COUNSEL
Santiago Olivares
TDCJ # 1607304
Darrington Unit
59 Darrington Rd.
Rosharon, Tx 77583
R E L AT 0 R
Presiding Judge
337th District Court
Acting in His/Her Official Capacity
Harris County, Texas
1201 Franklin, 15th floor
Houston, Tx 77002
R E S P 0 N D E N T
Santiago Olivares/Pro se
TDCJ # 1607304
Darrington Unit
59 Darrington Rd.
Rosharon, Tx 77583
P R 0 S E
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TABLE OF CONTENTS
Introduction of Parties and Cover Page pg.i
Identity of Parties pg.ii
Table of Context pg.iii
Index of Authorities pg.iv~
Statement of the Case pg .1 -
SUBJECT MATTER
POINT: Relator's habeas corpus (11.07), has been in trial
court under ORDER DESIGNATING ISSUES for over two
years, since September 10, 2012. With no action _
being taken on the writ.
Statement of Jurisdiction pg.2
Issues Presented pg. 3'
Statement of facts pg.4
Summary of the- Arguments pg.S
Argument . pg/6,7,8
Relator's point (restated). pg .6- ~
Conclusion and Prayer pg.8
Certificate of Service pg.9
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INDEX OF AUTHORITIES
State Cases Page
Ex parte Kerr, 64 S.W.3d 414 (CCA.2002). _pg.'7
Ex parte Ramzy, 424 S.W.3d 220 Tex.1968) pg.7
Federal Cases
Barker v. Wingo, 407 U.S. at,5~1-32 .. pg. 7
Blackledge v. Allison, 431 U.S. 63, 71 (1977) . pg. 7
Davis v. Fetchel, 150 F.3d 486 pg.8
Deter v. Collins, 985 F.2d at 795 (5th Cir.1993) pg.6
Rheuark v. Shaw, 628 F.2d 297 (5th Cir.1980). pg.8
Shelton v. Heard, 696 F.2d 1127 (5th Cir.1983) .. pg.6.7
St.Jules v. Beto, 462 F.2d 1365 (5th Cir.1972) . 'pg. 7
State Code
Tex. Code Grim. Proc. 11.04 pg. 7
Texas Constitution Art. 1 § 12 . pg.6
Federal Codes
28 u.s.c. § 1361 . . pg.8
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STATEMENT OF THE CASE
Relator filed for habeas corpus relief on September ·10, 2012.
State filed its response on September 24, 2012. The Assistant Dis-
trict Attorney(ADA), recognized the severity and meritorious
claims that Applicant raised in his 11.07, such as "Ineffective
Assistance of Counsel"; and "Actual Innocence" etc., that the ADA
filed a "MOTION REQUESTING DESIGNATION'OF ISSUES" to the habeas
trial court(Respondent).
On September 27, 2012. Respondent in the 337th District Court
signed an ORDER DESIGNATING ISSUES(ODI).
j
Relator request that Respondent ORDER trial counsel to ad~ ,
dress the allegations in Relator's habeas writ application by way
of affidavit, so Relator can rebut his proposed answers and hold
an Evidentiary Hearing to address the actual innocence claim.
If trial counsel is unable to comply with this order; Relator
request Respondent to make a ruling and recommendation to the
Court of Criminal Appeals so his habeas corpus may proceed in a
speedy and effectual process.
Relator request this within 90 days of Respondent receiving
this ORDER of Mandamus from the Court of Criminal Appeals.
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STATEM~NT OF JURISDICTION
The Court of Criminal Appeals has sole Authority at the State
level to address the issue of Relator's complaint within its jur-
isdictional power.
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ISSUE PRESENTED
P 0 I NT
Relator's Habeas Corpus 11.07, has been in the trial
court under ODI for over TWO years, since September 10,
2012, with no action being taken on the writ.
This Honorable Court has the authority and power to force
action to Relator's claim of Respondent taken no action in the
course of review and process of his writ of habeas corpus.
Relator wishes immediate actidn from this court, forcing
Respondent to act. on his writ of habeas corpus in the interest
of justice and fairness and the course of Due process.
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STATEMENT OF FACTS
Relator filed for Writ of Habeas Corpus challenging the con-
stitutionality of his conviction on September 10, 2012. The state
ADA, requested an ODI on September 24, 2012, which the habeas
trial court(Respondent), granted on September 27~ 2012.
Relator has been extremely patient with the court in the pro-
cess of his habeas corpus However, 2 years with no action being
taken on his 11.07 is entirely unexceptable.
Relator has tried an "Informal Resolution"(Exhibit A-1), that
was sent to Respondent on August 17, 2014, and after hearing noth-
ing, Relator filed a "Motion To Compel"(Exhibit A-2), sent toRe-
spondent on October 5, 2014, and has asked for help from the ADA
who requested the ODI(See Exhibits A-3 & A-4), and has received
no recourse from the ADA or Respondent.
Relator and Applicant for habeas corpus only recourse to re-
solve this issue, is this Mandamus. Relator will argue as follows.
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SUMMARY OF THE ARGUMENTS
POINT OF ARGUMENT: Relator has filed for writ of habeas cor-
pus, claiming "Actual Innocence." The Respondent·has failed to
abide by the TEXAS CONSTITUTION in keeping the remedy speedy and
effectual. Relator has the right of this process, and Respondent
has a duty to uphold this right.
Two years of Relator's habeas corpus being stagnant in the
trial court, with no action being taken and no responses to Re-
lator's request, is a clear violation of Relator's Due proce~s
rights, and the effective, speedy remedy of the Great Writ of
Habeas Corpus.
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ARGUMENT
Relator and Applicant for Habeas Corpus(11.07), relief,
mailed his writ to the trial court that was received and filed
on September 10, 2012. The response from the ADA, recognized the
merits of Applicant's claims and requested to the habeas court
that Designation of Issues be ordered in their motion that was
delivered on September 24, 2012. The Respondent, agreeing with
the ADA, signed an ORDER DESIGNATING ISSUES on September 27,
2012.
Relator's habeas writ has been stagnant in the trial court
since September 27, 2012. No action, whatsoever, has been taken
on the 11.07 for over 2 years. Relator and Applicant for habeas
corpus has tried to contact the court through an "Informal Re-
\_.
solution"(Ex.A-1), and a formal resolution with a "Motion To
Compel"(Ex.A-2), with copys sent to the ADA(Ex.A-3 & A-4), ask-
ing for their assistance in processing the 11.07~ with no re-
sponse or recourse from the .State or Respondent.
This state process of the habeas writ has become "effica-
cious." Shelton, 696 F.2d at 1128 (5th Cir.1983).This "inordi-
nate delay . . in state review [is] solely attributable to in-
adequate state procedure." Deter v. Collins, 985 F.2d at 795
(5th Cir.1993).
The Respondent has a duty to uphold the legal process of hab-
eas corpus, and 2 years of stagnation in the trial court is not
what habeas corpus was designed for. The Texas Constitution Art.
1 § 12, states; "laws shall be enacted to render the remedy
speedy and effectual."
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} .
The TCCP. Art. 11.04 states; "Every provision relating to the
r writ of habeas corpus shall be most favorably construed in or-
der to give effect to the remedy, arid protect the rights of the
person seeking relief under it." See Ex parte Kerr, 64 S.W.3d
414, 419 (CCA.2002)("The purpose of a writ of habeas corpus is
to obtain-a speedy and effective adjudication of a person's right
to liberation from illegal restraint.")(Citing Blackledge v. Al-
lison, 431 U.S. 63, 71, 91 S. Ct. 1621 (1977)("[T]he very purpose
of the writ of habeas corpus [is] to safeguard a pe~son's free-
dom from detetion in violation of constitutional guarantees.'')
and Ex parte Ramzy, 424 S.W.2d 220, 223 (Tex.i968)(''the purpose
of the writ of habeas corpus is to obtain a speedy adjudication
of a person's right to liberation from illegal restraint").
Relator does not have any other recourse to address the sit-
uation of his habeas. Relator has tried to "assert [] his speedy
trial right,'' Barker v. Wingo, 407 U.S. at 531-32, with the infor-
mal and formal resolutions(Ex. A-1, A-2, A-3, A-4), that Relator
has sent to Respondent and the ADA.
Relaior's mandamus request is the last of his state remedies
to try and ~ove this habeas process that is suppose to be speedy
and effectual. The Fifth Circuit has found that unexplained de-
lays of two years are presumptively prejudicial. See e.g., Shel-
ton v. Heard, 696 F.2d 1127, 1129 (5th Cir.1983); St.Jules v.
Beto, 462 F.2d 1365, 1366 (5th Cir.1972)(Stating that seventeen
month delay in state habeas court made exhaustion requi~ement
m~aningless).
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The delay of over two years, is of no fault of Relator/Ap-
plicant, and exceeds the limits of Due process that the Fifth
Circuit recognize as excessive. See e.g.-, Rheuark v. Shaw, 628
F.2d 297, 302 (1980).
Relata~ believes he has established (1) a clear right to
relief; (2) a clear duty by the judge to do the act requested,
and (3) the lack of any other adequate [State] remedy. 28 U.S.C.
§ 1361. Davis v. Fecthel, 150 F.3d 486.
C 0 N C L U S I 0 N
Relator believes that he is entitled to Mandamus relief,
and has thoroughly showed this court that he has no other remedy
for his habeas corpus to proceed.
P R AYE R
WHEREFORE, PREMISES CONSIDERED, Relator prays for Mandamus
relief from this Honorable Court. And ORDER Respondent to proceed
~orward on Relator's 11.07 within 90 days of receipt or Mandamus.
RESPECTFULLT SUBMITTED
Santiago Olivares/Pro se
TDCJ # 1607304
Darrington Unit
59 Darrington Rd.
Rosl}aron, Tx 77583
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- .
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the fore-
going WRIT OF MANDAMUS, has been mailed on this Ge~ day of
~Af' , 201f. To:
Abel Acosta/Clerk AND ONE GOff TO; Presiding Judge
337th District Court
Court of Criminal Appeals Harris county, Texas
P.O. Box 12308 Capitol Stati6n 1201 Franklin, 15th floor
Houston, Tx 77002
Austin, Tx 78711
Signed on this rfZ!f. day of ~ , 201f.
RESPECTFULLY SUBMITTED
.L_~r2~
Santiago Olivares/Pro se
TDCJ # 1607304
Darrington Unit
59 Darrington Rd.
Rosharon, Tx 77 583
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A T T E NT I 0 N
'\
To: Hon. Court Clerk
337th District Co~rt
Ha``is-County-, -Texas- --
f201 Franklin, 15th floor
Houston, Texas 77002
Re: Santiago Olivares
TDC#.1607304
Darrington Unit
59 Darrington Rd.
Roshar6n, Texas 77583
Pertaining to writ of Habeas Corpus 11.07 No.1174911-A
To Honorable Court Clerk,
Enclosed you will find an "INFORMAL RESOLUTION" concerning the
status of my 11.07. I would like you to ~BRING THIS LETTER TO
THE ATTENTION OF THE COURT/JUDGE, so that he will have knowl-
edge of the situation and status of the said 11.07. This let-
ter__t~- _§.~lf .eJCPl-1!I1i!1:_QJ;y_._ In___the__ int_e_r_e_s t __of__jus_ti_e__e ___ &_fairnes_s_._
Your time and consideration into this matter is greatly ap-
preciated.
SINCERELY YOURS
RESPECTFULLY SUBMITTED
.L~ c?~ fJ-tr-/f
Santiago Olivares/Pro se
TDC# 1607304--~----
Darrington Unit
59 Darrington Rd.
Rosharon, Tx 77583
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I
NO. 1174911-A
EX PARTE § IN THE 337th
_ SAN'rlAGQ OLIVARES ... § . DISTR-ICT COUR-'f-
APPLICANT § HARRIS COUNTY, TEXAS
§
I N F 0 R MA L R E S 0 L UT I 0 N
I
· On September 10, 2012. Applicant filed a writ of Habeas Corpus pursuant to
Art. 11.07 of the TOCP., for post-conviction relief.
II
On Septemeber 24, 2012. The Assistant District Attorney(ADA), for Harris
county, ~ized the severity and meritorious claims that Applicant raised in
his 11.07. Such as: "Ineffective Assistance of Counsel"; and "Actual Innocence"
etc., that the ADA filed a 'Mn'ION REQUESTING DESIGNATION OF ISSUES" to the Ha~­
beas trial court.
III
On September 27, 2012. The Presiding Judge in the ·337th pistrict Court(ha-:-
beas .trial court), signed an ORDER DESIGNATING ISSUES(ODI).
IV
Applicant has been extremely patient in the court's process of his 11.07.
However, it is approaching 2 years since the ODI, and no order has been sent
to trial counsel to address Applicant's merits, nor has an order_~been ·issued
for an Evidentiary Hearing to resolve Applicant's 11.07 claims.
v
The TEXAS OONSTTIUITON Art. 1 § 12 HABEAS OORPUS states: "laws shall be en-
acted t9 rend_e_r_the_r_emedy__ speedy_and-eff ectua-1-.~As-this-Hene:r:able-eeur-t-can--------­
see, Applicant's 11.07 has not been "speedy and effectual." Id., either due to
oversight, misplacement, or sheer neglect. Applicant PRAYS thi's Honorable court
will expedite and resolve this issue in an expedient manner.
CERTIFICATE OF SERVICE
~
~--······.
I hereby certify that on this / T day of Autfvsf-
<.
, 2014. .
v .................
I
Was placed in the Darrington Prison mailing system, and forwarded
to saidId., ,:ei-ther due to oversight, misplacement,
or sheer neglect.
Second: Art. 11.04 Tex. Code Crim. Proc. states;("Every provi-
sion relating to the writ of habeas corpus shall be most favorably
construed in order to give effect to the remedy, and protect the
rights of the person seeking relief under it."); See Ex parte Kerr,
64 S.W.3d 414, 419 (CCA.2002)C"The purpose of the writ of habeas
corpus is to obtain a speedy and effective adjudication of a per-
.~-------------- ---``~- -- ~-
--------
-----,--son 'srTgh-t-·ra-Tiberad.-on -fr-c;·;;--illegal restraint.") (citing Black-
ledge·v. Allison, 431 U.S. 63, 71, 91 S. Ct. 1621 (1977)("[T]he
very purpose of the writ of habeas corpus [is] to safeguard a per-
son's freedom from detention in violation of constitutional guar-
antees.") and Ex parte Ramzy, 424 S.W.2d 220, 223 (1968)("the pur-
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pose of the writ of habeas corpus is to obtain a speedy adjudica-
tion of a person's right to liberation from illegal restraint").
IV
DUTY OF THE COURT
As Applicant has shown herein, it is the duty of this court
to abide and enforce these laws. Applicant has clai~ed ''ACTUAL IN-
NOCENCE" in his habeas corpus, yet his 11.07 in the State court
has not been "efficacious." Shelton, 696 F.2d at 1128 (5th Cir.
1983). This "inordinate delay . • . in state review [is] solely
attributable to inadequate state procedure.'' beter v. Collins,
985 F.2d at 795 (5th Cir.1993).
v
CONCLUSION
Applicant prays this Honorable Court will immediately ORDER
6d~n§~l t6 address the issues in his habeas corpus, and hold an
Evidentiary Hearing to address the issue of his "ACTUAL INNOCENCE"
claim.
P R A Y E R
WHEREFORE, PREMISES CONSIDERED, Applicant prays for immediate
action on his 11.07 habeas corpus in the interest of justice and
fairness.
____________________________RESJ~ECTEULLY_SUBMITTED--------------
------------- ``~
Santiago Olivares/Pro se
TDC # 1607304
Darrington Unit
59 Darrington Rd.
Rosharon, Tx 77583
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C E R T I F I CAT E 0 F S ERV I CE
I do'hereby certify that a true and correct copy of the above
and foregoing pleading will be served by placing it in the TDC
---------Darrington Unit mafring system, postage paid, on this ``d~a-y~---­
of !?(`` , 2014, addressed to:
Presiding Judge
337th District Court
Harris County, Texas
1201 Franklin, 15th floor
Houston, Texas 77002
Signed on this ~1Z day of ~..er, 2014.
RESPECTFULLY SUBMITTED
·``
Santiago Olivares/Pro se
TDC # 1607304
Darrington Unit
59 Darrington Rd.
Rosharon, Tx 77583
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·~·
A T T E NT I 0 N
To: Joshua Reiss /Presiding ADA
Assistant District Attorney
Harris--County;- Texas------
1201 Franklin, Sui 1:e 600
Houston, Texas 77002
Re: Santiago Olivares
TDC# 1607304
Darrington Unit
59 Darrington Rd.
Rosharon, Tx 77583
Pertaining to Writ of Habeas Corpus 11.07 No. 1174911-A
Dear Joshua Reiss/Presiding Assistant District Attorney~
Enclosed is a copy of the "INFORMAL RESOLUTION" that has been sent to the
trial habeas court in the hopes of resolving the claims in the 11.07.
Any help that could be facilitated from your office to expidite the con-
cerns addressed ih the 11.07 will be greatly appreciated.
SINCERELY YOURS
&
RESPECTFULLY SUBMITTED
``--4u ~ f8- H_,-/1/
Santiago Olivares/Pro se
TDC# 1607304
Darrington Unit
59 Darrington Rd.
Rosharon, Tx 77583
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AT T E NT I 0 N
To: Presiding Assistant District Attorney
Harris County~ Texas
1201 Franklin, Suite 600
Houston, Texas 77002
Re~ Santiago Olivares
TDC 1'f. 1607 304
Darrington Unit
59 Darrington Rd.
rlosharon~ Texas 77583
Pertaining to writ of habeas corpus 11.07 NOo 1174911~A
Dear Assistant District Attorney~
Enclosed is a copy of a 11
t·10TION TO COMPEL" the trial court to act
on my habeas corpus, This motion is self-eJcplanatory ~ and shmvs
that the state process of the 11..07 has been ineffectual. This
motion is to exhaust state issues and procedures. If no recourse
becomes of this motion, a Mandamus wil~ ensue, and then by-pass-
ing state exhaustion will be necessary for federal review.
This office has asked this court for an ORDER DESIGNATING IS-
SUES, and yet has failed to facilitate in the process of this ha-
beas. I have sent a copy of an HINFORMAL RESOLUTION" to this of~
fice on 8/17/14 9 that was sent to the habeas court, and still no
action has been taken. Applicant asks once again for help from
this office to move forward the process of my habeas corpus 11.07.
SINCERELY YOURS
Santiago Olivares
TDC t~ 1607 304
Darrington Unit
59 Darrington Rd.
cc Rosharon, Tx 77583
I