Case Information
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Court of Criminal Appeals no. 108-55,424-03] Trial Court no. 7000 CQ46000770 DIAL In the 49th Subtrial DISTRICTEDCSTYED IN WISOPRECURCHINHARE APPEALS
JUN 292015
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Abell Appeta, Clerk
APPLICANTS MEMORFIVOUN IN REPLY TO THE STATES RESPONSE TO THE APPLICATION FOR II.OI WRIL
New comes Gabriel Cardona, applicant pre-se and files this Memorandum in reply to the State's response to the Application of Writ of Habers Corpus and respectfully show the Court as follows:
1.Facts
The State filed a response to the Applicants writ of Habers Corpus on the 22nd day of May 2015. The Applicant filed his Application through certified mail, certified no. 7014182000012048 9255, and delivery date being the 30 th day of April 2015. Certified maill was delivered to the District Clerk.
The State invokes the Laebes protection as a bar to the Application. Although the State cites caselaw in support of its point that the State need not make any particulained showing of prejudice, the State nevertheless states it suffered prejudice in its ability to investigate and prepare a defense to the Application. Alternatively, the State prays the Court to require the Applicant to satisfy one of three components to climb over the Laebes barrier.
The State further claims that the applicant fails to meet the 11.07 standards with respect to the "Tachad basis" and foets not being pled to demonstrate "Strickland prejudice."
That the Applicant offers nothing more than speculation for his conflict of interest claim The State further states that the plea agreement and judgment of conviction clearly"set out that the State seatrace would run concurrent with any federal sentence.
Lastly, the State introduces an affidavit by Counsel Sosa, Fousth, after being duly suceived and automated as being true. Counsel Sosa states that he thoroughly interviewed the witnesses, investigated the facts of the case and advised applicant accordingly. Denies the allegation that he protected the daughter of a former client from the rigors of cross examination and acknowledges that a point of negotiation was applicants' input" regarding his Federal Sentence.
II. Argument
The filing of the States response is unkindly. In accordance with Article II. 07 of the Texas Code of Criminal Procedures, the State has 15 days to file a response. Proof of delivery dates 4/30/15 for certified maill no. 7014-1820-0001-2048-9255, that is the 30 th day of April 2015. The State's response filing date would be expired on or about the 16 th day of May 2015.
*2 Laches: The State is not "materially prejudiced" by the deloy in filing the 1107 Application and it is not prejudiced "in its ability to investigate and prepare a defense to the Application." II The State is in possession of the entire offense report. The Laredo Police Department has the entire report as well which investigator Roberto Garcia and Joe Barea (spokepeyser) have been giving to the media like flyes: 2) The Federal Government fited a Travel Web" indictment against codefendants, coenquiries and applicant, which is still officially open and invalues this case as part of its racketeering element; 3) The State and Federal Government have been cross engaging their witnesses, codefendants, with each other to the benefit of one another; 4) The Federal Government has secured witnesses, evidence, and testimony; 5) The witnesses the State had at the time of Applicants trial, 'Raul Jasso, who makes ko's of the States case, is still in Federal Custody as a Government witness; Christine Lorawo is in no more er less of disposition from the time of Applicants trial; 6) The state may have the added benefit of or from Aurora del Becque, who would be inclined to assist the State. Certainly the state is in a more fewurable position and is not prejudiced and could have conducted a proper investigation.
Applicant also filed a "ReQuest for the creditors of claims" where in applicant gives a thorough explanation for such delay in filing the application. Such explanation should satisfy the justifiable excuse" or "excusable neglect" requisite. (See Applicants' ReQuest for DUS CREDIBILITY ...including its attachment of Exhibits as proof for such delay.) Heretofore, the applicant satisfies at least two of the three components the State invokes. Accordingly, the Laches protection should respectfully fail. Foetual basis and prejudice: Applicant styled his petition in the cumulative error "fashion rather than in the single error". That is that the cumulative effect of Caussels errors prejudiced him, including the other errors committed by the Court, in that applicant did not (could have not) make a "fully informed" and "consensus choice" i.e. intelligent, knowing and voluntary admission of guilt. The State raises the claim in its response under a individual error" or single error" notion. The U.S. Supreme Court has held that the earmuts prejudicial effect of Caussels errors must be considered cumulatively rather than individually. See Williams v. Taylor, 529 U.S. 362,120 S.C. 1495,1515 , 146 L.Ed. 28 389(2000). The Court of Criminal Appeals has also recognized and ruled and that concept. See e.g. Ex. R. tr. Wadborn, 785 S. 6, 2d 391 (Tex. Cu App, 1996) Applicant styled his petition in that had counsel done "all the above" and advised applicant accordingly, it is reasonable to conclude that there exists a reasonable probability one would not have plead guilty but proceeded to trial. See e.g. Ferraro v. U.S. 456 F. 2 d 278 (2001) (Cr. 2002) Co. reasonable probability" is a probability sufficient to undermine confidence in a belief that the Capplicant] would have entered a plead. Applicant would also respectfully remind the Court that the U.S. Supreme Court has held that pro se filings should be construed liberally". The interests of ends of Jus tice as requires. See e.g. Haines v. Kerner, 104 U.S. 519,580,30 L.Ed. 2 d 652 (1972). Applicant is not a lawyer, applicant is proceeding pro se, with what he has learned through thorns and thistles, but nevertheless makes the best effort to be as precise as possible. Applicant fited an "Affidavit of Facts in General" as well wherein he explains to the Court how he was affected and why he plead guilty. (See Affidavit of Facts
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in General") Ha filings construed liberally, or by reading the petition as stated above, in the "cumulative error" concept, establishes that applicant did not make an intelligent, knowing and voluntary admission of guilt, prejudiced by Cunseli errors.
Conflict of interest claims under Cuyler can be established if a petitioner demonstrates them an actual conflict of interest had an "adverse effect" in Cunnsels performance. Counsel did not interview Christine Lozano, the "other evidence" that according to the report would corroborate the Accomplice Witness testimony. By foregoing intericcwing Lozano, Counsel was precluded from making a proper assessment of the facts of the case. Instead, Counsel was operating under a misconception that Lozano's statements were material to the fullest extent and seemed to give up on the cognition in actuality. Lozano's statements were not personal knowledge and were coerced and be hectored. Consequently, Counsel could not move to suppress those statements under the 14th Amendment. Counsel did not deny making those comments to Lozano and mother. Therefore, those comments are not with a clients best interests at heart. Counsel literally implied that Lozano should stay away from applicant. (See Applicants Nemorandum ofur more caselaw citing and further argument.)
Counsels Affidavit: Counsel states he interviewed "thoroughly" the witnesses and investigated the facts of the case. Had Counsel interviewed Christian Lozano, Counsel would learn that Lozano was verbally and mentally harassed, thus hectored into making those statements. Having done so, Counsel could have moved to exclude her. It would have left the state without corroboration to the Accomplice Witness. Having done so and accused applicant accordingly, who would plead guilty knowing that? Applicant wuuldet. There would have been a reasonable probability of acquittal. But Counsel for some reason forewert interviewing Lozano. Counsel further concedes to all other claims.
The state claims that applicants state sentence would an concurrent with his Federal sentence. Theyre not. Such proposition by the State, unsupported by caselaw, also constitutes inducement because the state has absolutely no authority with or over the Federal Government. A legal wording that would seem ironclad would be the following: The state agrees to relinquish custody IF the Federal Government and Court agree to an their sentence concurrent (with the states). Obviously, such proposition would always fail to induce defendants. The big word" if" leads any common sensical person to believe and know that: (1) The state has no authority over Federal Court, and (2) there's risk that Federal Court will not run the sentence concurrent (red). The reality of the situation is that applicant was told that his future Federal sentence would an concurrent. Applicant's sentences are not concurrent. The States point fails. Applicant was not told that the state or Court had no authority over Federal Court. Something that Counsel conceder to.
111. Adequate Record
Applicant respectfully reminds the Court that an adequate record is imperative to paperty evaluate inof. Reftive assistance of Counsel claims". See Natttheney v. Anderson, C53 F.3d at 1040 (citing U.S. v. Dav. es. 103 F.3d 1329,1337 (TfCic. 1997). And a petitioner for applicant) is" entitled to an evident cry hearing ... in order that he might be given the opportunity to offer evidence to develop the factual basis of his claim," id. at 1040.
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Applicant filed a Motion for Evidentiary Hearing with his application.
IV. Conclusion
WHEREFORE, PREMISES CONSIDERED, applicant prays that the States response be rejected, and for further relief to which applicant may be entitled.
Certificate of Service
A copy of this document was mailed through First class mail on the 2nd day of June 2015, to the District Attorneys Office in Welsh County, Laredo, Texas. With oddress of 1110 Victoria sle. 161. Zip Code 78246, Recipient being AQR Highoel Bakiewire.
*5 BJECT: State briefly the problem on which you desire assistance. I would like to ma a legal package through certified mail,retrion receipt requested. Could you plecue come and pick up the package to weigh please. Determine the postage.