Jennings, Gary Don

~ 1
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110.‘ w 10_-7;__1``278,1<(11) A_
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Ex parte
*’"‘ ';
Gary Don Jennings
¢ .r‘ ``
REBHTTA`` __,C.our~t 01 C¢imilunl QPPQ¢:\'§
Of States' Response to ‘of Hu$HA/f&x&§
j.z\pplicanc'$ 11.07 wrir ’
To the Honorable Judge of said court. comes now Gery Don
Jennings, pro se, to present this "rebuttal" of the Honorable
Distriot Attorney, Susan Hawk's state's response to Application
for Writ §f Habeas Corpus. Do wish to impress upon the Court,
the fact that Petitioner is a laymen of the law, without any
acdaim c§rtification, and therefore, askthat the Court accept
- his rebuttal and thus construe it liberally
_“"”"‘M”'"““_~ T%L»¥e¢stren¢be1sg wi hout~legaf Founsel or assistance ask
.¢_``._, -<~ ,1~,..‘.,,
"““ 'W**¢>~¢<»»~ .~_¢-.¢,_-.~,,..z_,<_.]_ ``__
that the Court §rovide such legal"Counsel to assist in the proper
manner to proceed 1n pursuant to exhausting his -constitutionally
protected 'liberty interest rights'.
Furthermore, the Petitioner hereby request that the Honorable
Court forward him'the conclusive fStatment of FactsV upon the
Coutt's disposal of the Petitioner's herein rebuttal.
RECEIVED |N
COURT OF CRIMINAL APPEALS
DEC 16 2015"
Gary Don Jennings
Rebuttal to State’ s response ' ABQFACQ§QQ_C~IGFK
sanders Esc'é"s U``n11 1105) Hwy 1807 . _ _
Venus, Tx 7668 ``? ; 11,.1»
W10-71278 K(A)
In The_Criminal Distritt
G Don Jennin s
any g court No#4 of Dallas County, 'B¢
,REBUTTAL
__ _ ``OF
STATE"S RESPONSE TO
APPLICANTS;" "Writ of Habeas Cor;ms
In accordance with PLRA requirements - insofar es having
exhausted necessary legal remedies, in hope to resolve such con~
stitutional and state legislative violations via YAppeal" of the
Texas Board of Pardons and Paroles' decision to "deny" release to
Mandatory Supervision - which proven futile. Wherefore, Petitioner
herewith, present a "rebuttal" to the State' s Response to Applicants
ll. 07 writ for Habeas Corpus relief. In pursuant to 28 U. S C 2254
Federal Habeas Corpus relief; such venue made available as in
- _Prei``ser v. Rodriguez, 411 U.S.C. §75, S_OO,. 933. Ct 1827; which addre-
sees the Fact or duration" of an individuals' imprisonment. ‘
'State or Federal habeas corpus relief cannot be granted unless
the Petitioner alleges he has been deprived of some rightsemned
to him by the United States Const_._itution - or upon basis established
by records of State legislature'.
The herein case involves the extent to which the Honorable Trial“
Court/_Appellate Court may judicially review the Texas Board of Pardons
and Paroles's "amended" Sept 1, 1996 7& legigislative House Billl&33
that governs the "Discretionary``Mandatory Supervi.sion." (DMS) rule and
process. upon such basis, the Betinioners' 11.07 writ claim -Gonstitu -
tdnml protected liberty interest rigths entails three grounds:
1) due process violation; Z)Ex post Fac'to; and , 3) Cruel unusual plmishment;
from which the Petisioner seek relief.
(1~0§-335
/,
1
PRocsbuRAL DEFAQLT
``ln most instances for the expressed purpose of eliminating
discrepancies,contradictions and/or inconsistencies, the bulk of
case law is quite redundant; and further, as strict measures against
misunderstandind, ambiguity, or to curtail the complexity of appeal,
a method of repti»»tiouet:case citing is employed. Whereas, the Petitioner,
for the sake of brevity - strains to avoild burdening the Honorable
court with such excessive legal jargon’ or the brute monotony of
case law citings - wherever feasible. Trusting, however, thS+a copy
of the Fetitioners' 11.07 writ and attached 19 page Memorandum of
law is at the Courts immediate disposal to peruse and contemplate,
and thus, facilitate its decision to reach a modest conclusion.
."Court must be especially careful when faced with motion/decision y
to dismiss for the lack of subject matter jurisdiction - and should
accord plaintiffs’ complaint a reasonable tolerance and reading - because
dismissal could preclude another suit‘~ based on any theory that plaintiff
might have advanced on basis of facts giving rise to the first action.."
Fed Rule Civ. Pro. Rule 126(6) 28 U.S.C.A.
If it pleases the“Honorable court, permit the Petitioner to¢emnmss
his resilient dissatisfied sentiments,however, nothing personal in the
neighborhood of casting doubt on the ``integrity, competence,
or morals of the
Honorable District Attorney;
`` Susan Hawk - whose decapitated method
of decorum and convoluted reasonin
g exemplified along her 'Statesl
Response to Applicants'
11.07 writ, was a defen§e, conducted upon
the gallows of prevaricated buffoonery; assailing the Hall of Justice
from a catapult of fling doctrine formulat
ed on the basis ofjudi¢ial
rhetorical evasions.
Such response entail sheer conclusory staummnts
unsupported by factual arguments. One would have to be furlous or
e Petitioners'
11.07 complaints as frivolous and of no me
to dismiss;
either delirious to have deemed th
grounds of "
error" Plain
rits;and thus, subjected
You can't be serious!
. . . "Plain error" is clear or 'obvi
were derelict in countenan
assistance in detecting it..
ous that trial judge and procecutors
'cing it, even absent the defendants timely
Fed Rules Civ. Proc. Sl.(b),lB U.S.C.A.
(2-0£139 )
An inmate confined in the Texas prison system is entitled to
aspect that the judiciary committee: the District Clerk, the Pro-
secuting Attorney(DA),and the Justice of the Feace ~ will be expert
and impartial in their approach to statutory mandates. The proper 4
objective of "rules" of civil procedure is to obtain a just, fair,
equal and impatial adjudication of the rights of litigants under
established principles of substantive lew. To the end that this
_objective~may be attained with as great expedition and dispatch
and at the least expense both to the litigants and to the State
as may be practicible, these rules shall be given a liberal
construction. `` _ d
l 'The presiding judge in such challenging disputant cases bennmn
a litigant and the State, has been known to uphold a special inst-
itutional virtue as a neutral referee; wherefore a modicum offair -
play can be ascertained; an umpire, able to read law impartially,;
to consider the factual evidence as relevant between both, the
common peasant and equally the elite. When the rights of the def~
endant are disregarded in the slightest degree in obtaining relief; or
either an accused worng-doer is afflicted with the abuse of officials,
the courts will hasten to grant relief in favor of the accused.
to the disadvantage of th?incarcerated
a claim to a right against an official
Board, it ought to be incurred the same
entitled any other litigants. In short, any shdw of abuse or cruelty
on the part of a few in power seems to discredit the
the entire government infrastructure.
offenders. If someone stake
as notorious as the Parole
type of genre of respect
authority of
In too many cases administrative
or extreme bias -
he very antics that prom
ptsd the ori ins
of the current challenge with the Parole Board; no doubt. g
tions regardless
ed to implement them.." U.S;C.A.¢kmst.$.
(3-0£"-33) .
~'f ~“’~. 4 '.
..."Imzates' claim against members of the Texas Board of Parole,
which called into question fact and duration of his
confinement, should have been brought as a habeas
corpus claim, rather than as a Section 1983 civil
rights action.." see Thomas v. Torres 117 FZ 248.
To the contrary, with quite a deal of modesty and truth; however
resolute, with courtroom decorum, the Petitiéner herein shallgndemnm
to refute the superficiality of the DAs' charading ballerina of
carnaging facts - whose portrayal is thus illustrated in such
bellicose act as to have denied the Petitioners' due process
claim on-an abstract practicality; and literally dismissed his
ex post facto claim with an attack of procedural jurisdiction
technicality - followed by the Petitioners' third claim of "¢ruel
and unusual punishment" being thus, denied as an extract.
sTATEMENT oF cAsE
The Petitioner is currently serving time for two sentences that
runs in separate "juris'dictions" - a 30 year UUMV conviction #F39-743228H,,
and the 10 year burglary of the instant case#FlO-71278K- applicable to
the 11. 07 writ in process; and whose minium expiration date was 5/8/201§;
towards whom a 30 day advanced "timely” notice - issued ~ 4/16/2015(§$5%@”
was not provided. Although the Petitioners’ 30 year, 1989 sentence
"governs" his 779 legislative House Bill 1649 ~ "automatically”
release to Mandatory Supervision date 8/8/2015, since its the hugest
of the two sentences which he must serve. see Exlubi% B (:¢494 JO/enr T'meshea¢)
Ihe crucial and logical question to ask; "
'4 why is the Petitioner
still held impris¢ned?" '
Inretrospect, since the inception of the Petitioners' TDCJ
imprisonment: the for§éiture of his ten~years of street-
was challenged
-time credH
, and later restored; which proceeded a withdrawal of
a "parole denial" ~ a Set-fo; replaced with a "Serve~All" xq)until
the 8/8/2015, the Petitioner' s automatic release to Mandatory Sup -
ervision; only to be unceremoniously snatched away by the im
propriety
of the "Sept 1,1996 revised HB1633 "
Discretinhoy Nandatory &lpervision" rule.
(a~of#§§ )
In accordance to - U.S.C.A. Amend lé:
. ."l‘he due process goal in any parole review is to
mininize the risk of error in their decision making. The
quantum and quality of due process in a particular situ~
ation depends upon the need of the Parole panel to mini-
mize the risk of such errors."
Unfortunately, as herein the incriminating facts shown thatthis
has not been the objective of TDCJ/Parole in the Petitioners' case.
Petitioner asserts that "Discretionary Mandatory Supervision"
language in the 74“‘legislature House Bill 1433, creates a liberty
interest release on_parole-if an inmate's accrued good conduct time
is an accurate relflection of the inmate's potential for rehabili ~
tation; and that his release would not endanger the public'.Yet, the
Petitions' 1001 accrued good conduct time an astute participant and
completion of the TDCJ ITP prison program requirement; registered
as a TDCJ "Peer Educator"/tutor - an accurate reflection of his
ongoing "rehabilitation"; void of the slightest disciplinary case;
by far from posing that of a "threat" to socety - Nonethelessy
denied release to the Petitioner's statutorily Mandated automatic
Mandatory Supervision prison discharged date.
A most crucial point to keep bored in mind is the prevailing fact;
.~. .then an inmate enjoys a constitutiinal expectancy to an early release
from prison based on the accumulation-of good-time credits, and the actual
calendar time served = equals the_térm to which the inmate was sentence
thus, he has a protected liberty interest and is entitled to due process
of law before he may be deprived or otherwise (connived) out of such
entitlement." see Wolf, 418 U.S. at 557, 945, Ct. 2963.
``}.
Similar as incase citing of Orellana v. Kyle, 65 3d 29:‘the
Petitioner is seeking to have the Parole Board comply with due process
of law procedures (as well as to ex post facto requirements) in its parole
review process'. The Petitioner has been denied due process of law because
he was not given en advanced "timely" 30 day notice that’s applicable
to his 2013 10 year sentence that's under the Sept l, 1996 74"``legislative
HB 1433 statute. "An inmate is entitled to a 30 day advance l'tin)ely" notic e' ``
as specified in Ex parte Retzlaff”l$$ S.W.Hd 45
,SO(Tex, Crim. App. 2004).
Traditionally, .
procedural due process protects an indiviidulas rights to be
heard at a meaningful time and in a meaningful manner'. U.S.C.A Const.S
(5-0£-33 )
The District Attorney, Susan Hawk, herself, concede with the
premise'"*;}of the "due process clause":. "Unlike Parole, Texas Mandatory
Supervision statute creates a liberty interest in release that is protected
by the Due Process Clause; see Ex parte Geiken, 28 S.W.3d 553; while a live
hearing is not required to satisfy due process, an inmate is entitled to a
meaningful opportunity to be heard before the Parole Board makes its decision
n concerning the inmate' s release' . see Ex parte Shook, 59 S.W.3d 174, 175
An inmate is entitled to notice of a 30 day aovenced '"timely period guff-
icent enough: time to submit materials on his behalf " Ex parte Retzlaff.
Yet, the District Attorney, Susan Hawk is moved to put her own
charlatan spin along the lines of the "statutorily" above quotes:
...'Whe ’Discretionary Mandatory Supervision' notice ~ clearly states
that Mandatory review hearing would take place within 60 days prior to
your projected release date.."
A£firmatively, the Petitioner concedes. z
Yet, the District Attorny's second "quote" of the DMS notice
is mere conjecture that proceeds assertions uttered out of admi-
nistrative chauvioism:
..."The DMS notice made it clear to the Applicabt that the review of
his Mandatory release in this instance case would take place no sooner
than June 8, 2015, and was actually heard on June 25, 2015.."
Blatantly hegative! the futility of the second above "quote"
is nowhere to be_found on the DMS notice, nor does it alludes to
the precision of such dates - which is to strongly insinuate an
act of camaradriecchort with the Board of Paroles (whdd!alm)em$ains
why the Applicants' 11.07 writ had been returned Oct 8, 2015 - thirty days after
mailing it to Dallas County Clerk of conviction - yet, such writ wounds up in the
hands of the Austin, 'l``x Court of Criminal Appeals clerlc, Abel Acosta; who
mysteriously forward the Applicants' 11.07 writ back to him "unprocessed") .
During the chivalrous males of the District Attorneys' "qudte§',
the pangs was taken to omit the main centural line of the DHS mmjce:
...'Records indicate you have a conviction with an offense date
afun'C&GH/UEH.
Hence, what other motive, if l might add, would an upholder of
"justice" evade the ultimatum of the DMS primary notice ~ but yet,
astutely S@lect quote V€rbatim~ that does not promote the interior
of the "due process" violation being herein contested; while the "Plain error"
of the DMS notice is clearly totally defective.
. (6-0£133
Similar it is found in Ex parte Ervin, 187 S.W.§d 386:v
... "Defendant filed a state habeas corpus petition in which he argued
that the Parole Board did incorrectly apply Tex Gov. 503.149 to his
case, rsmher than the eariier applicable sentencing statute; consq-
uently, the State ruled defendant claim cognizable in a post-ccnv -
iction habeas application; and the Board of Paroles must comply."»
\
The Petitioner hereby implores that the_Honorable court peruse
the enclosed DMS notice; exhibit__ - as its' inference clearly
states: . . ."Records indicate you have a conviction with an offense
date after 08/31/1$96.”
Hencej designating the Petitioners' 2013 lOyear burglar senmamej
\I‘\»,
whose minimum expiration MS date is 5/8/2015; despite of the fact
that such DMS notice arrived on 4/16/2015 - in stark due process error;
subsequently, such DMS notice is also satuated with an Ex Fost Facto
`` violation; seeing how its' retroactivly applied to the minhmn)gnpiratdnz
zdate 8/8/2015 ~ annexex to the Petitioners’ 1989 30yearlConviction;,
jubs,eq{uem+l\zj_,,bg_+)zes}ieerc'Hn§e:-``o)ta£beDM$-»/o+ice»pvjh$;hi}l+_:ihs@.§n¢€§~$$'»CL¢QMfl_£vl/:§L\di¢iici»:en..__\_
The crux of this whole panorama can all``boil down to -``as it is
acknowledged in the DA,Susan Hawk's state response to Applicants'
11 .07 writs .."Applicants' 1989 UUMV 30 year sentence govern his release
. H
eligibility as it is thelonger of the two sentences which he must serve.
Yet, the pervading irony that atigmatize the above postulate,
is none other than the fact that the Petitioner is prohibited bylaw
from even remotely drawing inference to the fact what such was the
unlawful act of the Parole Boerd. As a matter of "jurisdiction",
by all means, procedurally such an issue must resort to ah entnnly
separate 11.07 writ of habeas corpus being thus ensued. Yet, while
the "Justice of the Peace" (1Fm DA) referee it as a foul on my pagt;
the Parole Board eiults tauntingly over their own mischief.
.§Jl$nere individual liberty interest is implicated, the Due Process
clause requires that an excutive agency adhere to the standards by
which it professes its action to be judges." Bonitto v. Bureu of Immg.
The Petitioner herein contest » the acts of the Pa.role Boards ' manip-
ulating and monopolizing the DMS HBi433; creating a retroactive dichotomy, thus,
arbitrarily extracting from my 1982%??3;e§§e - to be superimposed by rules ofrny ZOLB"r'il 23,"2615,`` éh"‘;»," 'P@tici§hés"'
Dueprocess - Conc1usion:
The Petit~; oner humly relent, and wholly apelogize to the Hgnorable
court for the extent of a "due process" defense being at such length_
Perhaps the following "two" claims, as a result, has soemwhat tame;
the atmosphere and assuage the indepthnees of the aim to present a
short phase; at any rate, let it be upon the stage of such contending
woes, against the backdrop of the herein opposing odds ~ &m¢ ge
Petitioner' s puxassrights nas been highway robbed by the Board
of Paroles having reneged on its administrative law-abiding job: "f§i}_ure
to comply with State legislature statute to provide a 30 day exwence
t ime 1 y DMS no t' 1 ce; ".and +hus grA/\J.+Jhe_nelig§ehe_"see143 .
Lets not get it twisted; The 74*Legislature HB lé33 of the DMS rule
explicitly states: .."the change in law made by this .Act applies only to imzates
serving a sentence for an offense committed after Sep't_ 1, 1996 of this A¢,L-."
Hence, since the Petioner s 2013- -10year burg}any sentence is in
fact governed by this HB1433; 'why wasn’ t a timely 30 day notice
issued prior ~ to 5/8/2015 the miniumu expiration MS date? As oppxw§
'“'to having arrived and signed on 4/16/2015; erroneously being thusly
applied to the Petitioner's 1989-30 year UUMV Sentence;foe which the
embarkment upon of such "retroactive" influx brings us to the Ex Posg
Facto clai m. Hen{ce 'us+ because +he garcia B¢nrc{ Erred fm umlnwiu”``¢j APP/inj +}1€ DMS »/o+»``ce
doesn/1 n!€cea$n+n+e +he 5+¢)+@3 a_++em .+_+o mem ¢``_+3_ Ev£r iaae+ ier baird w»``+}\ 5¢1;¢{ <;om+§
P 3
J“'“SA’L+'°'“' Ex PosT FAcTo vlo;.ATIoN.
f Ex post fact clause applies to statutory or polocy change that
alters detention of criminal conduct or penalty by which a crime
is punishable; new law or policy violates Clause when it is tatro -
active, i.e, applied to events occurring before its enactment. lt
entails the putting an offender et a greater disadvantage than the
situation warranted previously.
Penal Code governs range of punishment; whereas, Criminal Cod@
n <10*°£133}0£ Procedure ensures that punishment is carried out oronerlv.
EX PosT FAc'ro
The Petitioner, admimnnghh pursuing such challenge against the
Board of Pardons and Paroles, quite a formidable entity; asauzamauam'
_ without the remoteness of legal assistance; and vdiose knowledge Of the rud-
§1{ iments of "jurisdiction" prohibition is rather skimpy; however, lmmeby
hmnore the Honorable court to deem the herein "rebuttal@§ibendiy Fbr
the District Attorney, Susan Hawk made its constraints to note:
... "Applicant is procedurally precluded from raising issues pertaining
to a previous current conviction# W89-74322 "
The District Attorney, out of an act of °‘omission", alludes to
the fact that the Petitioners' ex post facto rights has indeed been
violated by the Board of Pardons and Parole
es '- via - incorrectly applying
the amended Sept 1,1996 DMS statute
"retroactively" to his 1989 I)year
sentence; thus, the Parole Board erred by denying him its' stamnmry
"automatic" release upon its Mandated "Mandatory Supe‘rvision" date: 8/3/'201,5.-_
A blatant "ex post facto" violation; thus subjecting the Petitioner to a
prolonger imprisonment; certainly placing him at a grave disadvantage - Via
of being deprived - day-by~day his "freedom”, that would have otherwise
va transpired had the Parole Board simply complied to its StaunmryrmmdauIL
."Ex post facto is criminal or penal measure which is retroactive
and is disadvantageous to offenders because it may impose greater
punishment". U. S. v. Leonard, 868 F 2d 1393.
,,,"Statutes enacted or ammded after prisoner was sentenced cannot
be applied to alter condition of his pre-existing parole eligibility -
(an interceding NDTE - a concurring clause is
thus interjected......
Contf .. "notwithstanding that conduct », . 1 _ z
App]ication of statute 0ccuffed”3f12nF“tts“snactnent**§r§v€hsn€bnst.
Hence, at this incredible junction, the Petitioner shall present
substattial evidence -stemming from the above statute that contest
the DA Susan Hawk' s arguments
.."Applicants’ specific grievances in his second rouddfor relief '
(ex post facto) arise out of cause no 7W83-74322 1989 30 rear case). '
WRONG ANSWER!...Each of the Petitioner's three grounds derives from
the same source ~ the DMS notice which specifically states its' 'reference
to a conviction committed after Sept 1996." Hence, explicitly studied
to the rudiments of his 2013 10 year conviction in which the said Court has full
"jurisdiction" thereof. The DMS notice is "precluded" from such const-
ituents cit the Petitioner's 1989 court of "jurisdiction"; However may the conduct
purportedly mggg;§d an "ex post facto" violation, the "jurisdiction
__________________
the authority that resides in the
(N <>¥~33)
'" withstand upon
2013 10 year court case -annexed to the 115-
. ~.=~».\,
``\ w
\,
'. 1 `` ' '5:"*‘*
EX POST FACTO,RAMIFICATION
Tne judicial branch palys a complex role in the
"system" of law
and order.
Judges apply the language of the constitution and statutes
to specific court cases which often involve circumstances thatcould
not have otherwise been foreseen when such laws or conclusive arguments
|! "
_were made, however, then enacted as statute
. These judicial interp-
retations can either be of a conflictual
nature - or that of a sign~
ificant importance than even what the original text (Qnmt.)provisions v
they interpreted.
Real life issues does not always divide neatly between rq§m or
wnx@,
truth\vs. false; whereas, a matter of caution is not to pigeonhole an issue
too narrowly. It may be assume that a District_Attorney is obligated
to follow the law. But even then it is not the most natural or onhn@ry w
construction of the law - and certainly not the construction thatsud1 _a
administrators as the Parole Board might ensue to put their spin m1a
POliCY that the legislature has enacted into law ~
cuting Attorney@A)would stroll along and
terrible expense of struggling litigantS.
lt is the duty of state legislature'to ask
judiciary to "interpret" those
seeks to effectuate collective
enacted legislation;
and interprets it in
that a state prose-
}feel oblige to uphold atthe
e laws{
.and``the function of ::§
laws, When court inte
rprets statute, it
`` legislatures who
w\ _
es on text of statute
literal manner - attempting to discern fair objec€'
tive meaning of the text as a whole.
Take the enactment of the revised "
House Bill 1433, that governs' the
statute. Its' ordinance states':
amended" seize 1, 1996 74“’1egisiative
"Discretionary Mandatory _Supev:vision".'``l
..'The changes in law made by this act
only a
sentences ccmnited after 1996:``
pplies to prisoners serving
...‘The instant 11.07 writ is specific ``
#F10-712728(his 2
court>¢ "| .
ing issues out of
013 10 year conviction) which
waslmnnihe&ne due
Thus, the above quoted DMS 1996 statue ~'and its' every component- resides
within "jutisdiction" of the said court - and must be achmmdedg%iand
heard! The 1115 policy strictly states' "'
which
" 1 d n .. itapplies onlyi="
prec u s f
Ex post facto :
The District Attorney, Susan Hawk conceded to the fact that the
Petitioners' "ex post facto" rights has indeed been violated by
the Board of Pardons and Paroles via "incorrectly applying the
current amended Sept l, 1996 statutory rule" retroactively tolus
203.3-1.9 year burglary sentence; thus the Parole further erred 'by deny-‘
ing him the statutory "automatic? release upon its Mandatory Supe-
rvision date 8/8/2015 - a blatant "ex post facto" violation; thus
subjecting the Petitioner to a prolonger imprisonment; certainly
placing him at a grave disadvantage - thus having to endure such
day-by-day increased term deprived of his freedom - than would
have otherwise occurred had the Parole'Board simply complied to
its statutory mandates;_as a direct result of the more severe
punishment the Petioner is having to endure. Yet, to add insult
to injury; now comes the "Justice of the Peace" to close a blind
eye to such cruelities under the provincial of "jurisdiction" is
essentially just as cruel and unusual of a humiliating punisnment
being propounded than the likes of that wHich the Petitioner is
having to endure from the axis of TDCJ and the Parole Board.
§.."Indeed, courts have repeatly held that "parole eligibility is
part of the law annexed to the crime at the time of a persons' off-
ense." see Schwart v. Muncy 834 F.Zd 396, 398; also Burnside vz White,
760 F.Zd 217, 220.
tggmm_The Petitioner, admittingly, pursuing such challenge against
the Board of Paroles, a quite formidable entity, as an amateur
without the remotenessof legal assistance; and whose knowledge
of “jurisdiction" protocol is rather skimpy; hereby implore the
Honorable court to deem the herein "rebuttal”, liberally. For the
District Attorney made its contraints to notes
.."Applicant is procedurally precluded from raising issues pertaining
to a previous current conviction #F89~74322."
' 113-(.§.33\
"``} q' .'
dis extended free reigns - in spite of the law£{ ~ to manipulateznd
'interest rights..Tl
“’improper applications of
rights,
Ex post facto Cont:
.."Statutes enacted or amended after prisoner was sentenced cannot
be applied to alter conditions of or revoke those of his re-
exi.sting parole eligibility; notwithstanding that conduct pur§ortedl
triggering application of statute occurred after its enactment " ' y
U. S. C. A. Const. Art 1;10,¢1.““#’ §
Thus, the subsisting irony lies in the fact that - although
``R
the Petitioner has been deemed "procedurally prohibited" from ~§
raising the primary issue herein pertaining to the unlawful act4
that the.Parole Board is guilty of "retroactively" applying to ll
the Petitloner’s previous 1989 30 year sentence - running concu-'
rrent with his persent 2013 10 year sentence; the former of which
_ collides, thus creating a dichotomy from which the Parole Board
“* _z
monopolize at the behest of infringing upon an offenders liberty ~"~.»a@
1a essence of "procedural errorV stems from exh
"policy" adherence - thus broueh+before the Courts
_only to be neglected and dismissed upon the feeble grounds of ¢``j»
>"jurisdiction" .
g
As in the case citing of wilson, 52611.8.119 S.CR atleS:
."Supreme Court ruled that a district court must first evaluate
the merits of a p}.aintiffs claim to determine if his Constitutional
rights are violated, before it proceeds to determine whether the ~.
violated right was Wlearly established at the time of incident.
Constitutional government means that when a judge is called upon
to decide the case of John Doe v. U S., he is not automatically to assume
e oovern ment. fairness to John Doe seems to require that the
judge assure him his rights under the lew, regardless of what govrnment officials
may deem expedient for the public.
How shocking, to stand before a Justice of the Peace, who pronounce|
.."Yes, Mr. Jennings, you may have presented a valid claim about your liberty interest //
but we are not going to honor it, because it would be politically or otherwise
l technicality, the courts has
to take side of th
awkward to do so.' ’..Due to some procedural Jurisdictioa
similarly turned a b].ind eye to the Petitioner§ herein legitimate ex post facto claim.
"» (MPO£€B)R¢
..."Ex post facto policy, although partly discretionary, is still
subject to ex post facto analysis when there are sufficently'
discrenable criteria to suggest that new retroactive policies are
g being applied against offender’s liberty interest." U.S.C. C.
Art/1;9 c1.3, 10. C l. f
The gist of the concurring situation involves the arbitrary
matter in which the Board of Paroles has shown to flectuate from
one extreme of the Petitionersl“two separate, yet, concurrent sen -
tences, thus putting the Petitioner at a grave disadvantage by the
sheer act of retnoactively ~ toying with the rudiments entail in
each opposing statute; as if to imply merely a "partial" theme of
discretion is thus being applied into the DMS scheme.
..'The ex post facto clause flatly prohibits retroactive penal
legislation." Lynce v. Mathis 117 S. Ct. 891§ ‘
The District Attorney, Susan Hawh despite of the ensuing ramifi -
cation of the Parole Boards' explicit "Plain error" trampling upon
the Petitioner's constitutionally protected liberty interest rights,
emits the slightest allowance other than to hasten with its dismissal'
of the;Petitioneris every ll.C?Zwrit claim. Under the "current sen -
tencing" doctrine, meaning that existence of one valid convictionnmy``
make unnecessary review of.other convictions when current sentence
1 of f ~
have been given.
Concurrent Sentence Doctrine:
The existence of only one valid conviction makes unnecessaryrevdnz
of other convictions which run "concurrently” with yalid conviction.U.S. v. Stovall,
825, F. 26 817; opinion amended 833 F.2d 526 Crim.law 1177.
n
Sentence is not "concurrent" where mandatory special assessmenrs
are separately imposed on each conviction." U.S.Benqq 977F¥h1915.
Moreover, the word "concurrent" means running together,'boqmuath@",
contributing to the same event - acting in conjunction,,agreeingih the
same context - co~operating, accompyin n . f ``
_ _ g. East lex Fir Ins. C . . ‘
s.w. 572, 76._ o v Blum 13'
Any law is ex post facto which inflicts greater punishment than
the law annexed to the crime when committed, or which alters the
situation of the accused to his disadvantage. U.§lLA.(bnst.art.l.
9. c1. 3. and @10; Vernons' Ann. St. Const. an. 1, 16 -/Ex parte Alegria, 464
S.W.2d 868. - Const. law 197.
Hence, it is constitutionally un&uwibhato squash or preclude the
.statutory amenities annexed to the Petitioners' 1989 30 year sentence- to be Super
'liéof finame 'by the adversed rudiments Of his concur/alt 2013 10 Y@ar S€l'lf€n¢€; an unlawful '
'\ ,. - cr t `` 7 1 ' ' ‘
l t s incumbent open toth r~ the former and the'latter statute.
~‘,Ex?post``facto
Applicant is Procedurally Precluded From Raising Issues
Pretaining to #F89=74322 (~1989_30yr. concurrent case)
- `` The District Attorney
"The retuen and all suggestions made_by the Court against the
Applicants 11.07_writ may be amended by leave of court, before or
after being filed~" . °”"'” -
"Newly discovered evidence that, if prove and viewed in light
of the evidence as a whole, would be sufficient to establish by
clear and thus convincing evidence that no reasonable fact~finder
would have found the movant party guilty or in error of the offense
or by some retroactive means." '
Furthermore: §
..VTo escape dismissal a;plaintiff need not set out in details
the facts upon which a claim is based, but must allege suffic ~
ient facts to outline the cause of the action." see Marmon Group,
Inc. v. Resnord Inc. 822 F2 31, 34. , "
* On behalf ot the District Attorney's state response to Applicants'
_ 11.07 writ of habeas corpus ~ upon grounds of its denial and-dismissal
due to "procedural jurisdiction prohibittion that precludes the App-
licant from raising issues pertaining to his concurrently ran gentenc@..
#F39j743é2 30 yeare~UHMV conviction; with that of his coujoining:gg%eng§}ym
#10-712778 of 2013 10 year»burgiary conviction » to which the instant 11507 do addresses .
Thus, due to the uderlying facts herein presented to establish clear
convincing and sufficient evidence that 4 for Constitutional error, no
reasonable fact-finding insight would have otherwise reached sucha
conclusion ot dismissal of the Applicant's claim - hence, does the
Petitioner hereby request a Preliminary injunction intercede as a
referendum bases on the case citing of Ex parte Woodward,éHB SJN &5179;
Ex parte Campbells, 565 S.W. 952 - whose situation is analogous to ttuat of the
Petitioner's "jurisdiction" predicament; in faith that the Honorable
court will proceed its due process with writ of handamus if so suggest
otherwise.
Also: h ‘
.."where prisnoner was currently incarcerATED lN TDCJ in the Southern Distri¢t
of Texas and where he had been convicted in th Northern District of Texas,
jurisdiction under Federal habeas corpus statute was appropriate in
either district. see U.S.C.A @2241(@)-King v. Lynaugh, 729 F. Supp. 57
The Court of Criminal Appeals and each judge therefore shall have final
appellate and review jurisdiction in cases co-excessive_"with the limits of the
state, and its determination shall be tinal. Such ordinances is notaalnatter'<>f
right, but of sound judicial discretion enacted by Act 1965, 59 Lg. ch.722(5b),
(16~0£133)
: /.-\ 5 '
Ex Post Facto Credible Defense
against procedural jurisdiction
Prohibition:
The Petitioner shall rely upon the case citing in waldachmidt
vs. Amoco Oil Co» 92& F. Supp; as to lend credence in sustaining
the "recovery" of his "ex post facto" claim from the fate of a
dismissal; thus, substantiating the motive of "foul play",
.;4``€:»‘_ ..."Compleint must contain either direct or inferential allegations
`` respecting all material elements necessary to sustain recovery uncler
some viable legal theoryf’ Waldschmidt vs. Amoco Oil Co. 924 F; SuppSS.
,;::' . In accordance to Federal Civil Judicial Procedure and Rules; p.1086,
Sec. 2243 lssuance of writ; return; hearing; decision: Hence,fmenemly\
discovered evidence that solicit "foul-play" ensuing the due process
phase of the Petitioner's 11.07 writ of habeas corpus initially met
~_t
its rendezvous fate at 133 North Riverfront Blvd TB lZ-Dallas Teras
`` `` ’.\)
Countv~District Clerk - the court of'convirtion»to whom thePetitioner
. `` 1
' l via TDCJ Estes Unit Law library Indigent Postal; certified notary,_TDCJ"
\ . Law Librarian official, Ms Scott; on'€ept 8}``201SHIdsmhnuBJnm&ljudleL
as truth herein unfolds - the shrews act in which the "Courts" has
sought to be so bold.and uphold - its' obstruction of justice 4 will be
shown as being an even more severe violation of the Petitioners° Congt-
itutionally protected due process rights - than the likes of what his
,til.O7 writ cliam to blame against the Board of Parole.
Gn”bct 8?2015, the Petitioner's 11.07 writ was returned via addressed
P.O.Box 12308, Capitol Station ~ Austin, Tx; from the Court of Criminal
Appeals - "unprocessed"; by Clerk Abel Acosta; alleging that such]l.O?vmith
did dot'-,.comply ~ and must be sent to District Clerk of convi.ction. Ludicrous!
The irony - how did the Petitioner ll.O7 writ wound-up in such &nroff
jurisdiction of "Austin, Tx"; since said writ was not in "compliance",
who would forward it to a "higher Court" ~ unprocessed? As quseito
qu£y returning the defective 11.07 writ back to its original gend@r?
How bizarre, the exact same Dallas County District Clerk-court of
conviction has been caught in the act of foul~play by the sheer fact of
.N[ a procedural "jurisdiction" prohibition committed by hevbu;fomemdeithe
etit``:'toner's Bnprocessed 11.07 writ to Austin Tx;and thus, dimissed his writ nn
(FTQBBZ)P,
similar procedural jurisdiction prohibited grounds. Absurd!
Foul~play_of 11.07 writ by the jCourt
Cont:
On' Sept 8, 2015, Applicant, Gary Don Jennings, a¢¢()rding to Art_ll_m
Sec.3 - of the Code of Criminal Proce``dure,, on~'prope;r form, W_ith attached _19 peg
Memorandum of' law in support of legitimate claims against the Board cf"Paroles,.
did address and maied such writ to the Dallas County District Clerk ~
tne court of conviction; only to have had such 11§07 writ "returned"
approximaely 30 days later, 'unprocessed'.
'To the Applicants"utter dismay, the Dallas County District Clerk,
whose duty bound to statutorily render "due process of law", reneged,
and obviously, rescinded from the ethical responsibility to either,
honor the Applicant' 11.07 writ via due process; or otherwise return
such sol lemn legal document back to its original "sender", dreAppMcant.
Instead, the Dallas C'oun-ty Dis»tric_t l(»Jlerl< - under the pretense '°that 11.07 writ
“didrwt_comply - did erred by forwarding such writ of habeas corpus -
"unprocessed' ~ to an inappropriate "jurisdiction”; Austin, Tx -to dui '
;. nom-g <>f.``.(71.~:1111;§1.3.1»_/lp;;\?;gn_l'_s_{_;,_,'h``"``a,,s'm i t_s_clerl», _Abel_ Acosta, zenclosed, a notification
g .
1¥9-0£~33
alleging chat"‘che. Applicancs' 11.07 writ did not ¢on{>'l'y,.;,*thg``;``”i§mustbe
"sent to (Dallas County District Clerk of conviction)thus,unprocessed.-
The Dallas County District Clerks' ignoble attempt to extricate
¢$themselves as the sole culprit, is clearly futile - as their'exposure
is quite apparent by the sheer fact of the existing proof that the urit
was definitely addressed and certified notary sent to them. A blatant
act of "obstruction of justice".
By the arbitration provision of filing, and the legal documentppro-
cess, any writ or legal form required or permitted to be presented u)the
Court or to a Judge shall be filed with the District Clerk. If m£mdtted
by an inmate confined in an institution, a document is timely filed if it is ’
deposited through the Prison Unit internal mail system - and is accom-
panied by a notarized statement or declaratio
setting out the date of deposits and indi
has been paid.
n in compliance wid1 23 U,S_ 1745 -
eating that first class postage
And more often than not, it is known that the DA, not the Court orthe
judge, is who wounds up with access of writs, court logs and docket even
before the Grand Jury gets hold of them. In State and Federalcases,i¢$
the prosecuting District Attorney (DA) that always present the indictment under the
Yrong statute. With such amazing facts in mind, it doesn't take any stretch Qf the ``
)1magination to conclude how the Applicants{ writ got shipped to Austin Tx.'innnxmessad?
To Vindicate Habeas Writ Claim
From Dismissal
_ we -"
As a matter of public policy, any act that hinders or usurp the
legal operation of the judicial system or its legal proceeding ~ must
be resisted or punished by the ``Courts themselves'; the judicial system
could not long continue to maintain respect and demand obedience unless
they controlled such conduct that's remotely ltended to obstruct or corrupt 4
the administration_,of justice. `` `` `` "
tBy sheer virtue of the Applicant's 11.07 writ having wound-up in the4
hands of, Cler!<, Abel'Acosta§ of the Court of Crimnial Appeals - far-away
in a totally inappropriate 'jurisdiction", Austin 'l``e.xas - than from where it
was expressly addressed and mailed to - Dallas County Clerk;is quite bizarr¢" "
in and of itself; a stark act of defective process of law in the lease;'
yet, a blatant act of "obstructing justice" at worst. ``
vNotwithholding the fact that upon receipt of Applicantsl unprocessed
returned ll.O``/' writ; however foul were the pretenses for its rejection, .``
the enclosed 'notification alleged that such wasn’t in compliance by not ";
being sent "to the Di"srtict Clerk of conviction" - whereas, the Applicant did ``
subject his 11.07 writ to thorough analysis, insofar as referred its' iv
entire content to close scrutiny - and finding no rendition of possib]_;
defau"lt'~,' nor the ~f?‘a~»intes probability .o.f .inco.rrec§,addre,s_see;\ _:as;r a matter
of fact, the Ml?C/IDCJ'Estes Unit law 'Librarian official, Ms.$cott, had not only z
certified its "notary, she made contact via /’phone``; to the Dallas' County’ ..
C.lerk - the court of conviction; inquiring about the status'of the App -
licants§ ``11.07 writ and was told that the Court had already\pre-mature],y
denied it. Show-nough, upon having re-submitted the exact same writ~Oct-l‘);
addressed to the same place - Behold! no longer than a W€el< - Nov 2,2015
a notice did arrive, the Dallas County District Clerl< Felicia Pitre, informing ``the
Applicant that his 11.07 writ is being thus, processed.
'~ A definitely admission that clearly attest to the fact in thevalidity
of Applicants' 11.07 writ having satisfactorily been in compliance from `` ``
the start.', Yet; within only five days later the Applicant received the pre - g
mature dismissal of said 11.07 writ.
In the final analysis, it would be wholly inappropriate that no agtionjo
against such manifest error oil the "courts'" obstruction of justice"'; thus,
having subjected the Applicant to "jurm)" though a superfluity of hoopa in pursuit
of exhausting his U.S. Constitutional rights to present a legitimate and
sound complaint against such "due process", ex post facto, and cruel unusual
v punishment - only to have had reeked upon him a double dose of the same
malaise by the "so-called'"Justice of the Peace".
'/' (19-0£53 )
'It's not so much as the Petitioner having detoured frmnraishg a
civ l ,defense against specifically the``"dismissal" of his er,post facto
``u,' claim j than has been the Petitioner's aim to draw a parallelanahgy
of his existing restraints of "procedurally 11.07 writ jurisdiction
»1 prohibition”j- imposed by the District Attorneys' response that emitted
such dismissal; however, paired with the astute act of a '§urisdiction"
violation that stems from the judicial clergy themselves #@g‘#d§hnmy
be much more challenging as to sat a precedence in case law over the
issue at hand. Thus, embarking upon the "newly discovered evidence"
that the "legal w§it document" protoco]. extends to litigants. Surely
"no reasonable fact- finder" would have stumbled upon such validincrin-
inating evidence against the judiciary "movant" party t hemselves.
1
Legal challenges to administrators' action or obtuse_decisions d¥@f,
in principle, be conducted like any other sort of impartial litigation,_
Law, in essence is associated with fixed rules to "protect" people fran
unwanted intrusion - including the intrusions of government officials.
Administrative law, thus suggest_that administrative officialsbe alhnmd:
to operate with a more managerial or policy~oriented notion of law. 2
53 4 ln traditional view, however, the rule of law is thusly understood as an
Wv'|hl element that guarantees that administrators themselves would be held
?,accountable to the same legal process as private citizens.
1..,
“'An appellate court review a Trial court's decision concerning a pre-
adjudication habeas corpus application in the light most favorablto the
Trial courts' ruling; and must uphold that ruling absent an abuse of
discretion. Vern.ons" Ann. Tex. C.C.P. art 1108. Ex parte Simpson, 260 S- W~ 3d 172
Thus, the influnece of Courts can never be measured simply by the
apparent consequences of any particular case. For this reason admin-
istrative law seem to parallel many of the effects of the constitutional
vscheme in its normal operation and functioning.
To escape dismissal along either of the Petitioner' s he reing;
it is strongly advisable that an explicit description,
itutional, statutorial,
but yet,
laims,
whether:€onst-
or jurisdictional or otherwise -'IS concise,
resilient in such manner to synthesize the relevance as a whole
ln short, the objective of t 'rebuttal" ' .
J.S to
substantiate such herein cia ex post facto smelli
punishment - with a train of Stare decisis;
the doctrine f
under‘ _ o precedent,
dnch a Court must folknveariier judicial decisions whe
points arise again in litigation. n the same
t `` 20-0€~33)
he Petitioner' s herein
lmS' due p§xmms.~
v ossTRucrlom or JusTIcE- "*
(The Applicant' added claim)
The crux of the Petitioners' argument is that his application
bath demonstrated the issuance of a perfect and legitimate 11 07
Writ§ wholly sufficient to establish an entitlement to the furth-
erance of "due process of law" - without having been subjected to
the juggernauts of the judicial clergy.
Herein are tne material facts - by commission did the Dallas County
District Clerk, however anonymously, interacted with the said clerk,
Abel Acosta, of the Court of Criminal Appeals in Austin Texas;bou\of
who juggled the Applicant§ 11. 07 writ like an acrobat » about the
inappropriate jurisdiction of the "Capitol” of the Parole Board -at
whom the Applicant_il,07 writ attack, And without the slightest inha~
bition did the same court dismiss the Applicants' 11.07 ex post facto
complaint due to "jurisdiction" restraint from rad@§ the main issue
from his prior criminal conviction.
Hence, if there's any form of unethical "non~compliance? let the
record show that the Cour. s' judicial system has been herein t:uslyl
exposed of committing the very acts that violates the Texas Cr.-mina
Procedure Code. What a sight to behold!
Howbeit, the clerk, Abel Acosta, of the Court of CriminallAppeals
by far can't be absorbed of culpability, however, whether by "Qmigsion"
void of any suspicion, acted as the recipient, and respondent\sho,
knowledgable of.the desecrated 11.07 writ made by the former Disrrict
Cleik of Dallas, yet, contrived the burden to further violate the
sanctity of "due process of law" by forwarding such 'unprocessed'
11. 07 writ back to the Applicant (also Peti``tioner) under the pretenses
herein emphasized. ``
Despite of the fact that the re-submitted 11.07 writ did obtain
finally the ”due process of law warranted, yet it does not
preclude
or invalidate the important fact that a most cruel miscarriage of
gustice bath been ensued ~ which further, in all likelihood, 1mbued
the final process that resulted from the "pre-mature" dismissal of the
Petitloner s application for Article 11.07 writ of habeas corpus
5'(2#~0£-33)
~s'!"
However, in every era governments have sought to skew civil§liberties
by illicit dissent ~ inasmuch as the penal system has been marred by
administrive officials tyranny - whose abusive and cruel actsarelxdng
unilaterally imposed and thus, succeeding to overshadow and mute the
very voices of petitioners who are?being repelled with injury.
As it was herein alluded to previously, 'administrative law doctrine
tries to accommodate such realities by insisting that the role of the
courts is not to direct public policy - but merely to guide and'
channel the essential discretion of administrators or to ensure dmi dm
exercised thereof is distributed fair and in a proper manner.
To "quote" one dissenting judge; "We are not required to "Stricbly
construe" the applicable statutory provisions -(or,as hithis¢ume, the
jurisdiction irregularities), instead, we are required to "liberally"¢on..
strue them according to the fair import of its term, to promote justice
and effect the objective of State statutory code.|°c
see v_..'A.,c.c.P. stine vs.,
sta@,.sos s.w. 2d 429, 435. - -» t
The purpose of the Article 11»07 writ of habeas corpus,eimph/put,is
mto obtain a speedy adjudication of a persons' right to liberation me
illegal restraint’. Ex parte Ramzy, 424 S.W.2d 220 - Hab Corp 207. Furthermore,
A writ employed to bring a person before a court, must frequentlyis to
ensure that the persons imprisonment or detention is not illegal -
its essence is of immemorial antiquity.
The Applicant or the person detained may, under oath, deny anycf dm'
alleged facts set forth by the District Attorney (DA) in the return '°state's
response to Applicants' 11307 writ" - or any other material facts -
The Court shall summarily bear and determine the facts, and dispose
of the matter as law and justice require. §ewly discovered evidence;
( as the "jurisdiction foul-play herein bringJ fortb) as a whole, WCLlld be
sufficient as to establish that no reasonable factvfindin§ wouldhave
found the Petitioner, Gary Don lannings, herein,
v legitimate 11.07 writ
"due process" and
' ~
'ex post facto" claims no more worthy of
dismissal
than the substantiating fact of such "
cruel and Unusual punishment" is
attacks by the juggernuats of the judiciary clergy are permissible-
"(_2-2-0'£-53)
Criminal law§ in essence, is a "stablilization ofpsHHdMB Smjgl -
miicy ~ its objective is to guide and to regulate the conduct of ind-
_ °l Principle_i$ the maxim that judges, lawyers,
and the administrative officials apply in the criminal code of pro-
cedures as a method of following standardlized protocol; such as
the exhausting of the proper "due process" as means of gaining or
refraining access of the Courts. Prisoners challenging the Parole
Board, or such agencies, is required to exhaust such remedies on
a admininstrative level; similar are there are different levels
that one must proceed ~ due to "jprisdiction" or venue.
Juridiction, in its narrow sense, is something possessed by cmnms,
not by judges (who are merely officers of court, like lawyers , bailiff
reporters), it encompasses only power of tribunal
»andcxmrt-
over subject matter `` _
and person. see Vernons' .Ann. Tex. Const. art. S, 1, 8; Davis v. State 952, S.W. 555.~
Reports of judicial decisions are among the most important spaces of
legal authority in the criminal law system, Over the course of time, judges shape
legal doctrines to address the complex issues oflour changing society.|?[.eg-
islative enactments cover even broader range of issues, but even a statute that
.; appears Straight-forwerd must be read in light of the court decisions that construe
and apply its provision.
AS alluded to previously, the term "stare decisis", the core ele~
ment of the Common law; from whence, the Petitioner's sole pbjective q
is herein duty bound to substantiate his argument; the "case-book"
§* `` effect, 759 F.2d 1190 (5 Cir. 1935).
To the extent that the Petitioner, Gary Don Jennings, herein seeks
relief regarding alleged due process/ex post facto/and mmmllnnwualgmn-
ishment ~ violations resulting from the Texas Board of Paroles’review
"process - the District Attorney, Susan Hawk inordinately dismissed
the Petitioners° due}nxmess claim on an astute practicality that argued-
to the effect that the Petitioner, more or less, forfeited his entit-
lement to such "30 days advance timely notice".by Virtue inami'hbsent"
of a complaint about the lack of any availability thereof; for which
'tbe Petitioner's rebuttal ~ asserts that such a "statutory entitlement,
by law, to provide a recipient whose eligible for parole a 30 day notb:¢
is not dependent upon the recipients' utilization via a mdmdttei¢33) my °“"”
.:' .:-'?\"i‘:"' "5``"'~".
'qnl e
OVERVIEV ,
CRUEL AND UNUSUAL PUNISHMENT:
.."Sentencing lacking any legitimate penological justification
is by its nature disproportionate to the offender's offense
constitutes 'cruel and unusual punishment." U.S.C.A. Const. Arna\d.§‘._;
Hence,Petititoner, who has a non-violent offese and has served over 1002
of his sentence while in full compliance with institutional mell.s;void of
any disciplinary infractions; participant and completion of TDCJ ITP
and Re-Entry Programmiclrequirements; recent registered as TDCJ 'Peer
Educator/Wall 'l``alk tutor - all, an accurate reflection of his ongoti.ngstaue
of rehabilitation which qualifies him for MS release - without the least Of
an imposing threat to society; Yet, denied release to his 'automatic' date
’ 8/8/20.15; Absurd!
.. ."Such unfettered discretion shown by denial of Mandatory Supervision as
prerequisite of the 77_‘“Legislative HB 1469 - does raise entitltment and thus v
does crest 'liberty interest' subject to due process analysis." U.S.C.A.S'. 14.
The Petiaioner raise what he perceive to be 'abuse of discretion';
that is subjecting him to further forms of 'cruel and unusual punishment;
by the sheer constituents of the amended 7!+"``Leg. HB 11433 DMS rule - whose
application has explicitly herein shown to have literally treated his
'non-violent' burglary offense within the 3-g aggravated category;guch whose
not eligible for'release to MS. Petitioner has not been previously convicted
of any listed serious offenses that would be a predecessor to enumerated offenses
that may current make him 'uneligible' for MS release. Ex parte Ervin 187 S.w. 3d ``386. ``
Abuse of discretion - an adjudicator's failure to exercise sound, reasonable,
and legal decisionemaking. An Appellate court's standard of reviewing a decision
that is asserted to be grossly unsound, unrealistic, illegal, unsupported by the
evidence present." see Discretion(ls) Appeal and Error 946; Federal Court._
Abuse of process- The improper and tortious use of a legitimately issued
court process to obtain a result that is either unlawful or beyond the process in
scope." Also termed, abuse of legal process.
The Petitioner has yet drawn forth the decimated attempt of thev res-
' ponsi’nle l'judiciary Court clergy° to render the Petitioner's legitimate
11.07 writ ineffective through their maze of error and acts of ’obstructing justice’.
Black's Law -"obstruction of just_ice";interference of any kind with the law ful
service or execution of writ, warrant, or other such lawful processes ~»thus, and
squected to prosecutorial and punitive reimbursement."
`` j
.`` <22~-¢~;'_»33) \, y §
libility ~ yet, to be unceremoniously snatched, discarded, and "
Cruel Unusual Punishment: {R'\
, v . 1 l
In determining whether a Parfi¢ular PU“lShmth 18 omni mrimmwual,
the courts must look beyond historical conception to the evolving ``
standards of decency that mark the progress of a maturing society; the
stardard of extreme cruelty is not merely descriptive but necessarily
embodies a moral judgement, and while the standard it
same,
self remains the
its applicability must change as the basic morals of society;
change. see U.S.C.A.
Const. Amend. 8; Meadox v. State, 325 SJL 3d 18§.
' The Petitioner maintain his stance toward the State District Attor~
ney, Suan Hawk's ”underhanded" antics of belitteling the truth, as well
as to misappropriate facts. To assert that the Applicant's claim of
'cruel and unusual punishment' is withou
`` §
n _ t any supporting evidence, mule~
the Petitioner's replete with an abundance of
page Memorandum of law.‘How
11.07 writ application was
such supporting "evidence" along the 19
could a "clergy" of law be so cruel and
of such astounding facts. The Petitioner is petulantly.besieged by the
clamor of judicial rhetoric that refuse to warrant the Petitioner's
writ the sensible fortitude it so deserv
of humiliation and degradation.
deliberately ignorgthe validity:
es; as opposed,to moral trupitude. " ':
The State district Attorney's argument:
.."in other words, a prisoner is not guaranteed release on parole."
Hence, what more closer of a word in the engligh vernacular can be more~
synonymous with "guarantee release" than that of, "automatic release";
as that of which the 77*1egislature HB 1469 statute thusly entitles
the Petitioner's 1989‘,_30 year UUMV conviction that '°govern" his parole elig..'
toyed" ‘
with as a playething in the tyrannical hands of the Farole Board.
.."Faciall’y permissable forms of punishment of inmates may, throughr
continual use, inflict 'cruel and unusual ptmishment. U.S.C.A. C()NSI``.
Cooper v. Sheriff, Lubbock County, Tex,, 929 FZ 1078.
.Hence, it doesn'_t take any stretch of the imagination to preceive the
"pattern";
of arbitrhry and
caprious train of 'cruel and unusual acts of punishment that
has become``typical and "facially permissable"' - under the guises of rules and
policies; sinice the Petitioner's inception into TDCJ: 'forfeiture of-street-tdm&
credit, followed by amultiple Set-Offs;‘ then a 'witMrawal' of one Set-fo, only
to =L_be issued a -Serve-All; which proceeded an unlawful DME' notice. ..then denied Pero]e.
`` .' (27~0;-33)
Equal protection claims, in federal civil right action, can be
pursued and presented by inmates ~ in which they alleve that without
b justification they are treated unfair compared to other inmates sanctioned m
unparalleled sentencing guidelins." U.S.C. Const. Amend 14,1_2. U.S A 1933
No primer of an example of such 'cruel and unusual shrewd angles
o.":`` this can be seen than in the enactment of the amended Sept .,l 1906
74 legislative House Bill 143 3 tha t govern the 'Discretionary Mandatory Supervision'
-statute. Which is, beyond a matter of opinion, a blatant travesty of
justice, a mockery of 'due process' , anda mere joke! for many who harbor gm
expectancy of being released on such DMS provision any time shy of``their long
vwayrm-J>:imum discharge 'day-for~day' date; its° a marginal oriented notion
ot`` law and policy.
Hence, 'Equal protection’ clause requires no more than that a person under
particular sentencing guiglines be treated according to its' statutory ru``l@, and~ng¢
indiscriminately shuffled about like a "play~thing" in either extreme. If gha-n
llenged, government action does classify or distingush between two or
more groups; however, action does not violate 'equal' protection, it re-
quires equal law; not equal results. Precisely, the equivalence of the
3-g aggravated -DMS policy ought not be imposed upom the Petiti_oner' s ~\ §
'non-violent' past or current offense by the Parole Board nor by TDCJ. -'»':"
Abuse of Discretion Law:
Agency 'ahuse of discrtion' means that, in making decisions, agency
has either omitted from its consideration factors that legislature intended
agency to consider in circl.tmstances, included it
s initial consideration of guch
factors of irrelevant import;
reached completely unreasonable result after
W@i£hing Only assumable releva
. “ nt fact . .
Railroad, 753 S W. 2d 800 _ crs Se¢ Statewlde``Convoy Tran_
or however ,
vs . " ``
``The premise of such endeavor is that the Constitution has implied
distinct limits on legislative discretion, limits clear enough for Courts to
discern so that such legislative (tmreacrates) would enact legitimate '1aws' r ather
than merely applying its 'own' form of bureaucratic spin - or narrow-minded agenda
of one's own self-centeredness. The initial problem is not so much as
.’ 0 1 o
selfishness than, self-conceit', which makes one's discretion awful
opinionated or fiercely dogmatic in perspective.
``<11»#-33)
£-§@+hi$ §“oc§s§ %§§om§ LnFai:'v éxfffculi when §§ %p;§ig;§how§ winqt%&
§ l QVRRALL §YNQPSIS
`` Of 11.&7 Writ``
Wb§n, in the course of inca§§§rat§d §v§ncs, it becomzz §_ n§c§s
arv for an offend§r to petition t%e t%§ hands of servitude that
r§§i駧 in the unequal yoke of his c§p§§r§: and d§clar§ his alaim
09 s;atut§ry 'lib b§rtv int§cst' » with legitimate expectations §§
fair €r§atm§nt and 'p§rol§';'thus; guarant§§d under the Unit§d
St§te§ Con§t£tg§ion. '
Fr§§dom to p§tition gov§rnm§nt, expressly tha admi§i§§r§t€§n.
of the Bo§rd of P§rdon§ and P§rol§s, for r§dr§§s cf g:i§v§nces,
means the right to bring such probl§ms ana concern§ to Ph§ att§n~
ltitan pf elected and §ppoint§d judicial officials - in §n hon§§t
'pursuit tp have them rectified or co$r§cteé.
§ vary significant part of judicial r§gul§tory admins£r§tion
has made a hug§ §§f§ct 1a th§ T§xas Corr§ction§i system. Tn§ com~
pil§§ion or collection of st§tutory leaislmtiv§ ordin§n§ as being,
the §quv§ L§nr of the 'St§t§ Criminal. Coc§ of rro§e edur§ , my g§n»
er§l synopsis can b§ narrowed down to ake challeng § of the 74“
i.eglslativ§ HB 1433, the 'Disc retion§rv Man@§to*y Sup§rvi§ion°
§t§tut§ Not over the annals of le§i§}§tiv§ ni§torv %as su¢h
§Houa§ will had § profound impact upon the d§tzim§§t oftHe in-
:§rc§r§t§d offend§r§; who, by d§F§u}t, will turn out t$ des pis§
ith§ operation of th§ §uéi.c' mal/pen§l §y§r§m far greater upon their '
§v§§tual relea§e - than their initial imprisonment. _ d
Prudence, £hd§§d will dic€§te thai government long §St§blish
i§ §§€ to he changed on behalf of light and transi§n€ mean§; in§s ~
m§§H as § criminal, by virtu§, owes § debt _tor§@é@§£§j, and éa¢w§
'enti¢n``i§ jusifi§bl§; y§t, °tumult and oppr§§§ion'i§ worst than
§l§u§ht§rl -
Lt§d St-t§ 3 Supr§m§.€ourt rmm§x§§ hmm£§§ u)em§mm§ such gdmin,
:,3,"_ -
"r§é n
istr§tiv§ le view b§For§ entering the ar§n§ of ju§ici§ §1 r§view vaw@r,
;.,,,
P§ri§§dh§; 9 33 0?§§£#-§udzoif1c1§1§ tamper witm €h§ '*``
,ch§r f q. z
)HAZQ'S t§t§ officials §homld und§r§ §nd and r§§§§ct th§
§m$\§m . qf'n
and d§Lib§rat§ int§rf§r§c§ with ita 'proc§dur§‘ can result in civil``or ;woéeéééorial
p§ na!ty. Th§z§ §houlan the any d§h§t§ over 1§ sues that points out that admi§i§t
ll » v -~ .,\ 1.‘€:1"
cars 10?§1 capacity ar§ bo h, inevitabl§ and §§§§ntail: y§t, hy§
such g§§ici§lg ought to be Criti similar §tand§rd
F}n 0
§ d Eor pool performenc§, and equally cru§inized For
their wrong decision§ that le§§.é?>s§vnzf r§p§rcus§ion
04 .
BYNoPsIs cont,
v "v‘]_
"The law consists of the recorded 'rules that society Nll enforce
and the procedures by which they are implemented. These rules and
procedures are created in various ways, some by elected legislatures
and others through judicial decisions. However, these rules``shall
»govern the procedure in the justice, county, and district courts
of the State of Texas in all actions of a civil nature, with such
exceptions as may be hereinafter stated."
The Petitioner sole objective being to substantiate his argument
along the realm of the "case book" method; in retrospect, as most
effective in achieving the relief he seeks. However, may Providence
see fit that references of many similar case laws lends much strenght
and confidence in what's current - the State courts are not too565 S.W. 962 Cyw§33)
`` °;received dn 4/16/2015, yet the minimum expired date 5/8/2015; hence, which dues not
”. aroument of "dismissa?” is just as much of a 'Blain error' ;Seeing
SYNOPSIS cont:
Knowing when to condense your REBUTTAL into that final draft
can be just as exhausting than having begun gathering legalres@nch
material. Such being the case, there comes the moment when it is §cher
necessary to synthesize the reasearched information into a whole,
however, such an attempt to condense the broad range of the'judicial.f
dynamics of penology' into a synopsis shall be the basis upon which
my conclusive argument of rebuttal is to be ascertained.
The Petitioner hath seized as an argumentive advantage to admin-
ister both facets of the "Plain error" doctrine; the former requires
that 'a minimum of clear or obviouse evidence of law were in place'at
time of trial under "current law" (such_as the statutory allotted 30 days
advance timely notice due process scheme; or the app].icable ex post facto clause;
both of which stands out V?lain" as majors …errors made by the Parole Board).
The evidence presented by the Petitioner - 'copy of the 1245 notice
allocate for an advanced '30 day notice' as stipulated by Statutory law.
And the Parole Board, as well as the District Attorney,&man}vwk'$
that the Applicants' prior l989 conviction - toward which the Court has no jur13- 1 def
diction - however, is an act after the fact of the ’ex post facto' retroactive act. -'
Al though the amended Sept 1,1996 DEB statute was incorrectly applied to the ‘
Petitioner' s 1989 30 year UUMV conviction ~ yet, its the UMS notice that explicitly
lends reference to the Petitioner' s 'current conviction' of 20l3 - whicixcpincides o
with the DMS notice:.."records show you have a conviction committed after 1996".. '\
Iherefore given the Court absolute "jurisdiction" of authority to grant the relief
that the Petitioner seek.
Moving right along...
The latter facet of the "Plain error" clause is thus construed as the
absent of any 'plain error’ under "current law” - if - defendants' dwmry
requires the extension of precedent(such in the herein _'jurisdiction vs. venue
conflict. As the above rendition pointed out; the District Attorney, Susan Hawk has
obviously misconstrued the resolute irregularity of the ex post facto introduction
in the Petitioner' s instant 2013 10 year burglary conviction - annexed to the ong notice
that specify its’ relevance to a conviction committed after 1996; and surely this doesn' t
"preclude" the Petitioner from raising issues from that which is adamantly atteched
to it; and which further authorize this Court full' ’juriadiction". .How@ver, Such an
instance may warrant the setting of a.'jnxxuxknxx?§ in accordance with the
clause. see Fed Rule Ct Troj 610 F.3d 308 - Crim. Law.
owes )
Plain error'
'The Board e~¥ Pm~c(o»£$ amf Paro(es PnNe(memb€r‘_§, resin/fig FLs s bon/ch c)i:~
appointed renegades whohconsider themslves demigods, has convened
into a bureaucracy - a system so defined as a need to follow compdhd
procedures that impedes effective action; which ought not be take
lightly, given the havoc they've reeked in and around the penal
institutions that far outweigh what their vociferous demnds and
costly expenditures warrants.
lt is found in:Orellana v. Kyle. 65 F 3d 29; "that if prisoners
complaint alleges unconstitution, coupled with state law violation of the
Parole Board having indirect or an inadvertent impact on whether prison
eventually receives or denied parole, and both asserts claim\nder
federal civil right statute, and seek writ of habeas corpus, the court
should separate the claim and thus decide". Hence, the Petitioner
Gary Jennings, hereby request.
Guaranteeing persons' liberties the right to petition, protect
from abuse discretion, or from being excluded or denied due proce%
and thus, being subject to discrimination under any program or activity
receiving federal financial assistance, is the revelant provision
of the U.S; Constitution.
ln form, as the Petitioner herein emphasize, judicial djigatkm
in cases invoking the higher law of the Constitution - arise when an
individual asserts his rights against an entity that has violated
his rights,the Board of Paroles; if the resolution ofsud1cawais
of that which requires the court to analyze the validity