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IN THE COURT OF CRIMINAL APPEALS TRAIL CAUSE NUMBER(S) W- 2 1 9- 8 1 2 3 4- 2 0 1 2 -HC W- 219-81235-2012 -HC W- 2 1 9- 8 2 9 0 5-2 0 1 2 -HC ----- ' IN THE t219th JUDICIAL EX PARTE

DISTRICT ~OURT OF COLLIN COUNTY, TEXAS DIETRICK LEWIS JOHNSON SR., PRO SE APPLICANT,

REQUEST MOTION FOR WRIT OF MANDAMUS T 0 THE H 0 N O.R ABLE J U D G.E 0 F S A I D C 0 U R T : .

Now comes: Dietrick Lewis Johnson Sr., ProSe applicant,. in the above captioned cause and files this, his Pro Se Writ of Mandamus. Applicant would show this Honorable Court the following:

I.

JURISDICTION This Honorable Court has subject matter jurisdiction over the parties herein, of Aggravated Kidnapping, by section 20.09 Texas Penal Code~(20i2), Violatio~ of Personal Prot~ction Order Bias/Prejud W/2 previous convittians, by section 25.071, Texas Penal Code (2012), and a Deadly Weapon in Penal Institution,

;

·· b y s e c t i o n 4 6 . 1 0 , • ;T e x as P e n a 1 C o d e . II.

SPECIAL STATEMENT TO THE COURT Applicant is proceeding Pro Se in this action without assistance of professional counsel, has no formal trainin~ in law., has no access to any State statue'~ or law in the federal prison system, for the purpose of researching relevant law

(l)

: .'~ dealing with the issues in this case. Therefore, applicant

moves this Court to review this pleading under the standard

established in haines v. Kerner, 404 U.S. 519, 30 L. Ed. 2d

652, 92 S. Ct. 594 (1972).

III.

CONFINEMENT Applicant is confined at the Beaumont Federal Correctional Complex (Med), P.O. BOX 26040, Beaumont, Texas 77720, andre- strained of his liberty by the Federal Bureau of Prison's.

Confinement was and. continues to be imposed to judgment of conviction's registered against him by the 219 Judicial Dis- trict Court, and the United States District Court for the Eastern District of Texas.

IV.

RELEVANT FACTS In May of 2014, ap~licant filed a Wr~t of Habeas Corpus, Pursuant to Articl~ 11.07 § 3, of the Texas Code and Ctiminal Procedure. This Court issued/granted Designating Issues, of 1 " ~ ~

GROUND ONE( 1 )-PROSECUTORIAL MISCONDUC.T, AND GROUND THREE ( 3)

AND FOUR(4)-INEFFECTIVE ASSISTANCE OF COUNSEL. The Clerk of

thi~ said Court was ~upposed to send c0pie's of Designating

I~sue'~ to the Appeals ~ourt within 180 d~ys of applicant b~ing gr~nted designating issue's.

Applicant filed UNDISPUTED FACTS IN GROUND ONE(l), THAT HE WAS DENIED DUE PROCESS'OF LAW IN VIOLATibN OF ARTICLE 1,

SECTION 19, OF THE TEXAS CONSTITUTION. THE 5TH AND 14TH

( 2 ) *6 AMENDMENTS TO THE UNITED STATES CONSTITUTION, wher~ Assistant District Attorney; "Cynthia A. Walker," withheld exculpatory

evidence, (Metro PCS Phone Records), that was material, which she subpoenaed "April 15, 2013, on Docket sheet's in Case NO.

219-81234-2012, Pg. 3 of 5.

In GROUND TWO, Applicant filed Violation of Plea Agreement and J~dgment of Sentenc~, where on December 12, 2013, he was

sent to the Texas Department of Criminal Justice, which clearly violated his Judgment of sentence.

In GROUND THREE, Applicant filed Ineffective assistance of counsel, when he was denied due p~ocess of law, de~rived

of equal pro~e~tion of law as guaranteed by Article on~ (1),

section (19) of the Texas Constitution and the 14th Amendment to the United States Constitution. Applicant's plea of guilty was rendered involuntarily, ·due to the intentional constitution- al deficient performance rendered from Court appointed trial

counsel, in violation of Article one(~). section ten (10),

of. the Texas constitution and th~ 6th -Amendment to the United States constitution. Defense counsel;_ "Rafael De La Gar:za," .. .. ·. •" .. ~ :fr ~ ~ failed to request for subpoena's, to obtain evidence and for witnesses, before making plea deals with the State. Further, ~counsel failed to. investigate the iurrounding condu~~ of the

entire case. See: Hernandez v. State, 726 S.W. 2d-53 at 55

(Tx. Cr. App. 1986). Ex Parte Duffy, 607 S.W. 2d 506 (Tx. Cr.

App. 1984). Cannon v. State, 668 S.W. 2d 401 (Tx. Cr. App.

1984). Mcmann v. RicKardson, 397 U.S~ 158 (1970); Fiest'v. Scott, 885 F. Supp. 977 (E.D. Tex. 1995); Citing, Diaz v. Martin 718 F. 2d 1377, 1378 (5th Cir. 1983); Strickland v. Washington,

( ? \ \ ._,• /

466 U.S. 668, 104 S.Ct. 2052. 80 L~ Ed 2d 674 (1984). EX

Parte Lilly, 665 S.W. 2d 490 at 493 (Tx. Cr. App. 1983).

Hill v. Lochart, 474 U.S. 52, 57-59 (1985). Ex Parte Wel-

born, 785 S.W. 2d 391, 393 (Tx. Cr. App. 1990). Ex Parte

Fellton, 815 S.W. 2d 773 (Tx. Cr. App. 1991}; Cardenas v.

Stae, 960 S.W. 2d 941 (Tex. Cr. App. 1998).

In GROUND FOUR (4), Applicant filed Constitutional De- ficient Performance by Trial Counsel during Ple& Agreement.

The record reflects that the Court· appointed counsel; "Rafael D e La G a r z a' , " n e g o t i a t e d a p 1 e. a d e a 1 a g r e em e n t w i t h t h e S t a t e and signed by the Court. Counsel encouraged applicant to accept a Judgment and Sentence of sixty (60) years, that was viod as a matter of law, where counsel's misrepresented the applicant by saying; "I don't wish to see you in a Texas State prison

with Cancer, no air conditioning and with poor health care;

they n~arly k~lled Dr. David Rtissel in Huntsvill~, Texas, by

giving him the wrong medi~ati~n; I think you shouid take D.A

Cynthia A. Walker's offer of sixty (60) years anrl spend the -·~ '~

rest of your days in the Federal system." The sixth Amendme~t guarantee's a defendant the right to have Counsel present at

all "Critical" stages of th~ Criminal Proceedings. Mcmann v . · ~.

Richardson, 397 U.S. 759, 771 (1970). Hamilton v. Alabama,

3 6 8 U . S . 52 ( 1 9 61) . Pad i 11 a v . Ken tuck y , 5 5:9 U . S . (2010).

Ex Parte Kelly, 676 S.W. 2d 132 (Tx. Cr. App. 1984).

InGROUND FIVE (5), Applicant filed Actual Innocence Defi- nite Miscarriage of Justice claims, and Brady v. Maryland,

(4)

1963 and related case's. The prosecution committed Perjury

on the Federal Court, just to get the applicant's guilty plea to stand, and get a Magistrate Judge fact finding and Recommen- dation DENIED, setting them (State and Federal Prosecutor's), up with slam dunks in ·both Court's. Further, violating Article 2.01 and 3.01 of the Texas Code of Criminal Procedure. Ex Parte Adams, 768 S.W. 2d 281 (Tex. Cr. App. 1989).~(See Exhibit C &,2 ).

This applicant was benched warranted from (T.D.C.J.), Sep- tember 4, 2014, he spent five (5) months in Collin County.Deten- tion Facility, without hearing from the Court appointed attorney, or this said Court. ·Further, on Janua~y 22, 2015, applicant was transferred into Federal custody, and never heard a ~ingle word regarding his Writ of Habeas Corpus, pursuant to Article 11.07 § 3, Tex. Code. Crim. Proc. (2014); that benched warranted him back to Collin County Detention Facility, September 4, 2014.

Applicant wrote to the Appeals Court, regarding W219-81234-2012HC W219""7:"81235-2012HC and W219-82905-2012HC, .. and they stated that they.don't have s~id Case Number(s} no where in theii records.

I repeatedly, have written to said Court. (District 219), regard- ; l } j

·ing this matter, ~nd my request weit unanswered. Applicant

filed a Motion for Discovery, pursuant to Art. 11.07 § 3, of

the Texas Code and triminal Procedurd, which also went'unanswered

.l',.

to date.

PRAYER Applicant requests that this said Court grant the relief that h~ seeks in his Wrft of Habeas Corpu~, pursuant to Art:

11.07 § 3, of the Texas Code and Crim. Proc., and Writ of Man- damus.

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·. :. CERTIFICATE OF SERVICE I, Dietrick Lewis Johnson Sr., certify that on this day_iQ_ of May, 2015, a copy of this Writ.of Mandamus was mailed from Beaumont FCC Complex (Med), P.O. Box 26040, Beaumon.t, Tx 77720, by placing it in the facility U.S. Postal mail box; To The 219 Judicial District Court of Collin County, 2100 Bloomdale Rd.

· McKinney, Texas 15071 '\ f.\rV) ~ d Q.~M:ou.AL A~~~ L .S, Lou:r~G

~E~, C..LPL~, do\ vv· \lt~ Sl., ~ lD'=', A'-',Sir"-'• ~ 7'Z7o' 1 ~£ (7SJ dotS' i .

Beaumont FCC C6~Vl~x (~ED) P .. ,t:L BOX 26040 Beaumont, Texas 77720 (6)

EXHIBIT-C UNDER THE TEXAS PENAL CODE U.S. Department of Justice

Office of Professional Responsibility

950 Pennsylvania Ave. NW ·

Washington, DC 20530

May 15, 2015 RE: The machination's committed by the State and U.S.

Assistant District Attorney's as follows:

Dear OPR Dept.:

0 n No v-ember 2 8 , 2 0 1 2 , S t a t e of Texas case' number ' s ; " 2 1 9- 81234-2012, 219-81235-2012 and 219-82905-2012, Assistant Dis- trict Attorney; "Cynthia A. Walker," postponed a 9:30 AM Pre- Trial Hearing, with Honorable Judge "Scott J. Becker," resid- ing. Further, drove to meet up with this Petitioners U.S. Assis- tant District Attorney; ."Tracey M. Batson," whose the prosecutor in defendants- parallel -case's;--to retrieve a copy of his Federal (11)(C)(l)(C) Plea Agreement. - D.A. Walker went ·to doctrine

the petitionei's federal (11)(C)(1)(C) plea agreement, to make _;~ _.~ ~~

_:x it suit her Aggravated Kidnapping ca~e she was prosecuting again- st this defendant in his State parallel case's. Further, in federal C;~urt, all weapon ~~alation's was di~/missed against

this defenda9t during ple~-negptiations.

On ~ovember 28, 2012,;at 1:30PM postpo~ed Pre-Trial hea~ing in Case NO. 219-81234-2012, 219-81235-2012 and 219-82905-2012, D.A. Walker entered this federal· plea agreement in'to the Court's record, now saying petitioner gave U.S. Marshal's verbal consent

( 1 ) *11 t 0 s ~ arc h a p a r k e d ' 1 0 c k e d v e h i c 1 e 0 n p r i v a t e p r 0 p er t y ' w h e r'e a firearm was recovered. Therefore, they (Prosecutor's) doc- trined the plea agreement to fit an Aggrava~~d Kidnapping,

using the federal (11)(C)(1)(C) plea agreement as a confession to find thi~ petitioner g~ilty on all his State parallel case's.

Under.Texas Penal Code, Section 32.48 (Simulating Legal Process) (a) A person commits an offense if the person reckless- ly causes to be delivered .to another any document that simulates a simmons, comp~aint, judgment, or bther Court pro~ess with

the intent to: e)) Cause another &o; (A) Submit to ~he putative authority ~f the document, ~r (d) If it is shbwn on the trial of an offense under this section that the simulating document was filed with, preseated to, or delivered to a Clerk of a Court or an Employee of a Clerk of a Court created or established under the constitution or laws of this State, there is a re~ butable presumption that the document was delivered with the intent desc&ibed by section (~).

On November 28, 201~, State Assistant District Attorney entered this federal (11)(C)(1)(C) Plea Agreement, into the ''!; ~ ~ ~ .-·1? ~ ~ ~ S t a t e s "."r e c o r d t o us e as ~ confessio~ again~t this petitionei.

After this petitioner saw that the State of Texas was using ' ~is Fed~ial Plea Agreemen;~against him, he e~tered a Motion

in Federal ~ourt to withdraw pis guilty pl'ea.

0 n ,January 3 0 , 2 0 1 3 , .; at pet i t ion e r ' s F ~de r a 1 hearing to withdraw his guilty plea, the U.S. Assistant District Attorney, . .

had the State Assistant District Attorney actively participating

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;:., In ~he petitioner's federal hearing to'withdraw his guiliy plea, on video and audio, sitting at the table for federal prosecuting Attorney's.

On 1'1arch 4, 2013, the United States Magistrate Judge; "Amos L. fvlazzant," in his fact finding and reco~mendation to the

District Judge, was to g~ant petitioner a right to withdraw

his guilty plea and to take the case to trial before a jury .

. On fvlarch 18, 2013, U.S. and State Assistant District-Attar- n e y ' s entered an 0 b j e c t ion , certifying that· the . State of T ex a·s would not u~e the Federal (11)(C)(1)(C) Plea Ag~eement as a

confes~Lon in petitione~'s State parallel~case's. Further;.

knowing that ~he federal-plea agreement wa~ already entered

into the State's record "November 28, 2012," as confession,

five (5) months prior to even entering this objection March

18, 2013.

On April 10, 2013, U.S. District Judge; "fvlarcia A. Crone," denied the Magistrate Judg·e fact finding and recommendation, on 'the grounds that the State of Texas' certified that they

would not use the Federal.Plea Agreement as.a confession-with. J ) ~ ~

thi State, and made fhe guilty plea st~nd.

Pursuant to the :Texas Penal Code, .. Section 36.04, Improper Infl,4ence (a) A person~ commits an offensie if he privatel_y;i.addres- :r· f. .. • ~: • :~· ~. ~. ses. B r~presentation:, .entreaty, argume•nt,· or other communicas,ion

to ~ny public servant;who exercises or ~ill exercise offiFial discretion in an adjudicatory proceeding with an intent to in- fluence t~e outcome of the ·proceeding on the. basis of consider~

(3)

:·'"

a t ions o the r than those au thor i zed by 1 a w . ( B') f or pur. poses

of this section, "adjudicatory Proceeding," means any proceed- ing before a Court or an~ other agency of Government in which the Legal rights, powers, duties, or privileges of specified parties are determined.

Under the Texas Penal Code, section 36.02, Bribery (a) A person commits an offense if he intentionally or knowingly offers, confers, or agrees to confer on another, or solicits, ~a c c e p t s , o r a g r e e s t o a c c e p t f r om an o t he r : ( 1 ) An y b en e f i t s

~s consideration fbr the recipient's~decision, (Slam D~nk's in both, State. and Federal Court's, by getting t:he guilty plea to stand), opinion, recommendation, vote, or other exercise

of discretion as a public servant, party official, or voter; (2) any benefits as consideration for the rec~pient's decisio~, vote, recommendation, or other exercise of official discretion in a judicial or administrative proceeding; (4) (C) It is no defense to prosecution under.this section that the· benefit is not offered or· conferred or the the benefit is not solicited or accepted until after; (1) the decision, opinion, recommenda-

J l l t i o n , v o t e , o r o t he r e x e r c {s e o f d i s c r e t i on tl'a s o c c u r r e d ; o r - (2) the public servant ceas~s to be a public ~ervant.

It's c~ear that this pe0itioner was tag t~amed by State ::· . . . ~~- ~:· ~. and U.S. Assisfant District. Att~rney's, who deceiyed the Federal Court Judg~'s, simply to set; themselves up wit;h slam dunks in both Court's. Further, denying this petitioner his 5th and

14th Amendment io the United Stat~s Constitution, d~priving him a right to due process and equal protection of the law 1

by denying him a right to take the case to trial before a jury.

(4) *14 .· .... .......

".;·· , . ·Under ~he Texas Penal Ccide, section 37.03; Aggravated Perjury, (a) A person commits an offense if he commits perjury as def~ned in section 37!02, and the false staement: (1) I~ made during or in connection with an official proceeding; and (2) Is MateriaL (b) An offerise ~nder this sectio~ is a fel- ony of the third degree.

Section 37.04, Materiality, (a) A statement is ·material, regardless of the admissibility of the statement under the rules of evidence, if ~t ~o~ld have effect~d the course or ofitcome of· the official proceeding. (b) It i~ no defense to prosecution under section 37.03 (Aggravated Perjury) that deciarant mistaken- .. ly believed the statemsnt to be immat~rial. (C) Whether a State-

ment is material in a given factual situation is a question of law.

37.13, Record of a Fraudulent Court, (a) A person commits ~an offense if the person makes, presen.ts, or uses any doctiment

or other record ~ith: (1) K~owle~ge that the docum~nt or other record is not a ·record of a Court· created under or established by the constitu~ion or laws of thii State or of the.United } j

~ States. . ~:

Respectfully sub~itted,

(~~~~~~y~·;

pietrick Lewis Jo 19831-078 .Beaumont FCC (MED) P.O. BOX 26040 Beaumont, Texas 77720 (5)