Case Information
*1
PARTICANTS ME MORANDUM IN REPLY TO THE STARRING ACOSA, CIVAR
RESPONSE TOTHE APPLICATION FOR 11.07 WRIT
Now comes Gabriel Cardona, applicant pra se, and files this Memorandum in reply to the States 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 Appliconts, Writ of Habers Corpus on the 22 nd day of May 2015. The Applicant liled his application through certified mail, certified no: 70H-1810-002-2048-9285, and delivery date being the 30 th day of April 2015. Certified mail was delivered to the District Clerk.
The State invokes the Loches protection as a bar to the Application. Although the State cides caselow in support of its puint that the State need not make any particubated stwining of prejudice, the State nevertheless states it suffered prejudice in its ability to investiode and prepare a defense to the Application. "Athe, inatively, the State grays the Court to require the Applicant to satisfy one of three components to chint as the Loches barner.
The State further claims that the applicant fails to meet the 11.09 standards with respect to a factuel basis" and lacts not being pled to demonstrate "strickland prejudice." that applicants betched invis defense does not lessen his culpablitly.
The State further stales that the plea aggement and judgment of conviction C'learly "set out that the State sentence would run concurrent with any federal sentence.
Lastly, the State introduces an affidavit by Counsel Sosa . Faush, after being cldy yworned and notoriost as being true, Counsel states that he thoroughly interviemed withesses, investioged the lucts of the pare and advised Applicant accordingly. "That the betched inw." defense was futtly and ill aduised given the lucts of "this case". Counsel acknoudedges that a point of negotiation was applicants federal sentence.
11. Argument
The filing of the States response is urtivily. In accordance with Article 11.01 of the Tens, Codes of Criminal procedures, the State has 15 days to file a response. Proof of delivery dates 4/30/15 for Certticed mail no: 7014 1820 2011 2048 9285, that is the 30 th day of April 2015. The State's response filing date would bisexture expire on or about the 18 -th day of May 2015.
Loches: The State is not materially prejudiced by the delay in filing the 11.09 Application and it is not prejudiced" in its ability to investiode and prepare a defense to the Application: ithe State is in possession of the oflense report. The Larede Police Department has the entire report as well which inversiónr Paberta Parcia and Sue Barea (spokesposes) have been giving to the media like flyers 22 the Federal Government filed a "Trowel Act"indictment against codeleodents, a conspirahes, and applicant, which is still officially open and invokes this case as part of
*2 its redoltering element; of the State and Federal Government have been gross engorging their witnesses, podderdants with each other to the benefit of one another.4) The Federal Government has secured witnesses, evidence and technology. The State is now with the benefit of more witnesses than it actually had at the time of Appliconts trial: Witnesses include Rosalia Reta a co-delerdant and actual sheder. Roul saes not a cederdant but claims to have knowledge of such, Puura bukel Delouque. Roul Jasser wife who allagally picked up the arsidiants. All who have given testimony in Federal Court and for made statements to investigdors on or around 2012. Certainly, the State is in a more favorable position and is not prejudiced and could have conducted a proper investigation.
Applicant also fided a "Request for the credibility of claims" wherein applicant gives a thorough explanation for such delay in filling the Application. Such explanation should satisfy the justifiable excuse"or "excusable neglect" requisite. See Appliconts "Request for the credibility", including its attachment of "Exhibits" as past for such delay.)
Hereafter, the applicant satisfies at least two of the three components the State invokes. Accordingly, the Laohas protection should respectfully fail. "Fachual Rows and" "Regudies": Applicant styled his petition in the "cumulative error" fashion rather than in the "single error". That is that the cumulative effect of Counsels errors prejudiced him, in that applicant did not (could have not) make a "fully informed" and "conscious choice" i.e. intelligent, knowing, and voluntary admission of guilt. The State raises the claim in its response under the individual error "or" single error" notion. The U.S. Supreme Court has held that the prejudicial effect of Counsels errors must be considered cumulatively rather than individually. See Williams v. Taylor, 529 U.S. 302,120 S.C. 1445 , 1915 , Mo LEd. 2d 389 (2000). The Court of Criminal Appeals has also recognized and ruled on that concept. See e.g. Ex. Racle Welborn, 785 S.W. 2 d 341 (Tex. Co. App. 1910). Applicant styled his petition in that bad counsel done "all the above" and advised applicant accordingly, it is reasonable to conclude that there exists a reasonable probability are would not have plead quilly but proceeded to trial. See e.g. Ferraro v. U.S. 456 F. 2 d 218,294 (1992Cir. 2006) (a reasonable probability" is a probability sufficient to undermine confidence in a belief that the Lapplount] would have entered a plead. Applicant would also respectfully remind the Court that the U.S. Supreme Court has held that prose filings should be "construed literally. The interests or ends of Justice in requires. See e.g. Haines v. Kemer, 404 U.S. 519,520 , 30 L. 2 d. 2 (1992) Applicant is not a lawyer, applicant is proceeding prose, with what he has learned through thorns and thistles but nevertholess makes the best effort to be as precise as possible. Applicant filed an "Affidant 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 in General). His filing, construed liberally or by reading the petition as sluiled above, in the cumulative error concept, establishes that applicant did not make an intelligent, knowing, and voluntary admission of guilt, prejudiced by Counsels errors.
Counsels affidavit: Counsel Seers affidavit is conflicting in several respects. Counsel states he thoroughly interviewed witnesses had he interviewed David Martinez, who was the only person according to the Police Report to the applicant directly to the murder, by stating that a group meeting war held and "all three" presumed assailants atoted how the murder happened. Counsel would have learned that David Martinez did not in fact say anything about a group meeting nor that"all three" presumed assailants sluiled how the murder occurred. But it was Luceo Velas and Rosalia Reta who were speaking about the murder. Secondly, there evirted a reasonable probability that David Martinez Cerra would commit perjuy, which is what he is doing in Federal Court. Thirdly,
*3
Causel would disaver that in fact only David Martinez Cesca would be testifying on behalf of the State. Had Cansel further interviewed Christian Letow whom was familiar to Cansel, Causel would have learned that Laaress statements were nothing more than speculation, answers to leaching questions and not personal knowledge. Cansel would have assessed creditably and persuasiveness, that is if any witness had any Cansel did not interview witnesses as he claims. The batched investigation" defense had merit and would not be ill adue ed (See Applicants Nemo. of Law). Cansel further concedes to all other claims.
The State claims that applicants State sentence. would an concurrent with his Federal sentence, they are not. Such proposition by the State, wasipported by case law, also constitutes inducement because the State has also b likely no authority ever Federal Government. A legal wording that would seem ironclad would be as follows: the State agrees to relinquish custody IF the Federal Government and Court agree to run their sentence concurrent (with the States) obviously, such proposition will always fail to induce defendants. The big word "F" leads any common serical person to believe and bavey that: (1) the State has no authority ever Federal Courtand (2) thereis risk that Federal Court will not run the sentence (5ed) concurrent. The reality of the situation is that applicant was told that his future federal sentence would an concurrent. Applicants sentences are not concurrent. The States point fails. Applicant was not told that the State or Court had no authority ever Federal Court. A claim Cansel concedes to.
III. Adequate Record
Applicant respectfully reminds the Court that an adequate record is in percative to properly evaluate ineffective assistence of caned claims" See Nablheney v. Anderson, 255 F. 3d at 1040 . Loring U.S. v. Drawer, 103 F. 3 d 13291135 (7"Cir. MMI). And a "petitioner for applicant] is entitled to an evident easy hearing... in order that he might be given the opportunity to offer evidence to develop the factual basis of his claim, id, at 1049.
Applicant filed a Mishin for Evidentiary Hearing with his application.
IV. Conclusion
WHEREFOLE/PREMISES CONSIDERED, applicant prays that the States response be rejected and for further relief to which applicant may be entitled.
Respectfully submitted: 1)Were 2-d 7015 Gabriel Cardona 1444672 All Red Unit 2101 F. 44,869 N. loud) Park/TS. 7534.7
Certificate of Service
A copy of this document was mailed through first class mail on the 722d dayd. 2002215 to the District Attaineys Office in Webb Dandy, Laredo, Texas, with address of 1116 Victoria Ste. 401 Zip Code 78040. Recipient being AOA Michael Bulkiewicz.
A copy of this document was mailed through first class mail on the 722d dayd. 2002215 to the District Attaineys Office in Webb Dandy, Laredo, Texas, with address of 1116 Victoria Ste. 401 Zip Code
*4
BJECT: State briefly the problem on which you desire assistance.
I would like to ma a legal package through
certified mail, return receipt requested. Could you plecue come and pick up the package to weigh please. Determine the postage. ame: Gabaié Cardena ving Quarters:
REJUNE 72 Unit: Jg Work Assignment:
V-60 (Rev. 11-90)
RECEIVED IN COURT OF CRIMINAL APPEALS JUN 292015