Case Information
*1 WR-78,586-04
EX PARTE RUDY VAWADO
NO. 2008.CR. 11722. W3
RECEIVED IN CENTRE ORSTONIA COMPARPEALS PAY OF THEOICIAL DISMOST DEXAF COURTYY, TEXAS
MATIAN TO FILE A PETTION for DISCRETIONY REPUEW 2015
Now COMES The PETTIONE, RUDY VAWADO, PRo se, as avindseert LAMMAR OF THE LAW, AND A PRoWER' IN THE TEXAS DEPARTMENT OF CITINARI DISTICE. T.O.C. RUSSEY 1 UNIT IN RODRIDNE, TEXAS. THE PETTIONEY IN FUMBLEE DANFIEUE PESPECTRULE ENTERS This bANCHABLE COURT WITH This MOTION ASKIRS PERMISSION TO FILE A PETTION FOR DISCRET IWERY FEVIEM ALVEAMENTTO AN ONDER ISSUED OF THE 194th STATE district COURT ON SEPTEMBER 24, 2005, PECOMPRENDING THAT THE PETTIONEES PRESEnT U.O. DOPADEAS APPLIATIONE SE, OISTRISSED AS A SubSEQUENTU.OT bABEAS APPLIERITON. THE PETTIONEY CRAINS IN'T his PRESEnT U.O.OPHICATON THAT REWILY DISCOVERED EVIDENCE WILL NOTONLY PROVE PETTIONEES' MEDIALE INDICENCE but, WILL ASSO PROVE THAT THE STATE COURT E ECTRINOIUS PraceDVE WAS NOT SUPPICIENT TO EXTTEMEEN'T OF THE PRESUMPTION OF CONTECTRESS dORFINE. UNDER THE EXTTEMEEN'T'S COMPLEPCETIVE DEATH PERALITY ACT AEDPA, SECTION 28 U.S.C.A 2254 (d). THE PETTIONEY PRAYS THE COURT WILL SENATTT'S MOTION TO FILE A PETTION FOR DISCRETIONY FEVIEM WLLD, MERILE THE PELLEP SOLVANT OF AN ILLEGAL CONVITION AND INDIACENTATION. RUDY VAWADO, 4/31597
*2
No. 2008-CR.II728-W3 EX PARTE RUOY HILLADO
In the District Court ByN'M JUDIGAL DIS'MUT GEXAR COURT, TEXAS
PETTION FAV DISCEETENGOY REVIEN
Now COMES, The PETTIONEL in the above namedand numbered case, AND PUSUANTTO MORTEE, 1107 OF The TEXAS (code OF CIINIIRAL procedure Files This in rebuTtAL To The StTTE Court's order recommended that the PETTIONEEL APELICATION POI 1107 WITOFthabeas corpus be dismissed. The court's order was signed and decreed in the 19th district court of Dexar, OURT, TEXAS or SEPTEMED 24,2015 by Toeşec lorinn PUMTEL. In the court's order it is asserted that the PETTIONEEL FirsT1107 APELICATION WAS dismissed AFTER The StTTE APPELLATE courtand made an ASSESSMENT ON the MEIIE OF the II.OT APEIICATION, AND TINITAFTERWards The CQUTTOT (CIINIIRL APPEALS deMIEdWITONITN WIITEN OIDD The IIOT APEIICATION based on the StTTE court's Fircitices.
In his rebuTtAL The PETTIONEEL CONTEKids TINITEECNUS The StTTE CQUT'S ASSESSMENT WAS BASEDONN'T'WAS BASEDONN'T'T'WAS, WAS NOT SUFFICIENT TO APPOIEDTME PETTIONEOT OF A FULL AND FAII' NEMTION, AND BECNUSE THE StTTE CQUIT'S ASSESSMENTIRELIGOJ solely OK AN' AFFIDAVIT is NOT SUFFICIENTTO EXTIIE The StTTE CQUITFICTICIess To The Presumption of COIPECTRESS, AS EvideMEEDII CUEST V. LYNWUdN, 821 F. 2 d 1099. THE PETTIONEEL is his rebuTtAL, PUITtEN CONTEKids
*3 That, because the state in his case elected to use a substitue. Trade in place of the regular court trade to preside over the petitions that, which resulted in a different state trade revjewies the petitions first in a application and because of the non-participation of the substitute trade in reviewies petitions first during the reference solely on a paper record of the trials proceed. Ings which is insufficient to sustain the assessment trade by the state court in dismisses petitions, as evidenced in Burrow v. Lrrswab, 879 r. 2 dно(sm cit.1982, 197 U.S. 1032,110, S.C. 3295,111, ed 2 d 803, where that court held that its decision to deny Burrows state makes petition relied on the tract that in Burrow, the trial court trade and the state trade who review ed the eppidivis relations to the state babeas petition was the same. Trade who presided over the petitions, that and sexitervies. And because the petitioner in the instant case has rebutted the state courts preferibdices procedure to support the petitions, claim that the state court did not deductate the merits of petitions, e.g. Fits for the court, deffermination in Finds that the eppidivis subnited by trial courted was credible and notipul. In support petitioner cites assey Lurah, 155 U.S. , if is sited that a petition for babens corps relied after the initial petition was dismissed without the adjudication being made on the ments. P. Tiv(2)
*4 of a sinte tnbers clain is notp"securdot successive "PETTACK Stact k nEDMANIEL, 120 S.CT.AT1407. TIE PETTNAREN BESERTS TOTTME SITTE COUTT is obieCTNARably redirg or secTtNA 28 dIscA 2254 (d) inERCIRING NTO The recorddisinformation by fatsely sithes in its brief TOTME Federal districtcourt. TOTTME REPELLATE SITTE JARGE Who made credibitity determinations or apptidnIT Was the same JARGE Who presided over the PETTNAREES ThalanoSerfecies thererore, whosepully obligaTtes the courts to dismiss the tnbers claims. In compliance with secton 28 us.C. 2254 (e(d)) the PETTNAREN inVotes the nisht in rebuties the sITTES disinformation which is supported by the record in sITTMEs that in the PETTNAREES case. JARGE PITPIESTWASTME Subsitiontio PIMAL court JARGE And TOTT TARGE Redus probibity was the JARGE Who made credibitity deffer. PIMATONS based ar an AFFIDENT AND ENERGED FINDICES dismissing The PETTNAREES FISTULA APPLICATION, A FACTwhich is now beIRg Subverted by the submission of the sITTES disinformation. Recordics To rule (40) of the Federal rules of civil procedure NOTE 404. A PENHAT SEEKING reLief based ar nEWly discovered Evidence must show thatfacts existed ATTME of PIMAL And that PENHAT WAs excusably isroparT of FACS DESAFTE USING due dILi. gence To learn about them. TIE PETTNAREN claims that an January 12, 2012, PETTNAREES PETTNAREN FACICE TANTRY FEVIEN WAs deMIEd
*5 by the courtof criminal appers perter denvies thearpuiants first 11.07APPIicATOAc or December 12.2012, withoutinwriten order and receive or the Fikdivas of the trial court withouta beative. The Pettinaker contends that March 23.2012, the trial court issued an order desiancties issues requities trial counsefs response to the order by defidavil with a court imposed deadline of May 16, 2012, to do so. The deasline was issued untiL Pettinaker filed in the court of criminal appers. A motion for a writof mardamus or october 24, 2012. The sigri eicance and relevance beins that the trial court deprived Pettinaker of a beative on the merits of his babers claims, and thence, did not have into consideration all of the facts before making credibiliP determinations in and. ins The defidavits "credible and futhful." And because trial counsel resianed after the trial without piles an appeal brief or directappeal the record does not support counse1's defidavit. cities andels v. California, 384 us. 738, 87 s.c. 1394 , and Brikous v. sthe, 134 s.w. 2 d /37. Because in Texas, the only time to challenge the sufficiency of the evidence to support a conviction is or direct appeal. ExPPIE, wicefield, 162 Tex. (rin. 112, 282 s.w. 2 d 219 ; (olbroth v. whinwrisht, 146 f. 2 d 1193. The exception is in showins that there was no
*6 Evidence or Accuciol elementor the offerse with which derexodnT was convicted. And because an indictmentis jurisdictional, the deffendnT at any time may raise exobiection to the indictment, based or failure to choose an offerse. (The constitutional law 244 (1) which states that the due process clause requires seven. Next to prove every element of chaesed offerse beyond reasonable doubt. Accordina to state law under tenousy rank c.c. A article 42.12, 39 (AN2) that.staRes a felon's possession of a deadly weapon does not by itself, consitute use"duties the commis. sion of the felony of sense of unlawfully possessing deadly weapon. In particsork. state, 1995 w. 20 '938, the court held that in order to use"a deadly weapon for affirmative findins Purposes, The weAPork must be utilized to achieve an intended result, namely, The commission of a felony of sense separate and district from mere' possession. See article 42.12.39 (AN2) particsork. Suprs. The pertinorer assitalites that because the the Prosecutor did not call for trial its chief witness called Ruiz, deffivies pertinorer of the night to confront his accuser, and of the night to cross examine the witness when forensics. expert testinon, was read at trial and discretitios Ruiz. Testinoncretitios discretpancies which precluded the Prosecutor from provins that the deadly weapork was used
*7 in The commission of the changed offerse which created a mithike between the adlegations in the indietent and the evidence presented at the final. Accorded to section 29 U.S.C.A. 2254 (ch.153. Note 1342. In a habers comes proceedings when incometency of counsel is called into question. question of suititons the considered for the reason that it determined was conclusively suicty. question as to what his counsel could do by way of depersee, is important. Hendricuson v. overlade, N. O. Irod. 1955, 131 F. Suet 341. Habers corpus. Heykote 442. The pertitoner postulates that because final counsel did not obtain and desent these facts at the final Tharsmutes the facts as newly discovered evidence. The pertitoner relates and shinthis his confertion that the state apetlite courtdid not enter an adjudication or the merit of his first 1107 application and therefore did not afford the pertitoner of a full and rain hearies on the state habers claims in his first 1407 application and as supported by Rose v. Lundy, 455 us. of 510,102 S.C. 1198 , his present 1107 application is not a subsequent application. Therefore the pertitoner has shown that this existed at time of final and that pertitoner was excusably important of the facts despite usies due diligence to Leav about them. Federal rules of civil procedure rule 60 note 404. In the case of
*8 Pesuidsin N PerMins, 133.SCT/924(2013) itis sTated that he AFFidn. vIS PerKies Presented in supportof bis ACTIAGl innocence chaim, The courtressored that EVERASsumins they qualified as new. U) discovered Evidexce of innocence, Perkiks could only set Past The AEDPA StBtate of Lirattators if he couldestablish Equitable ToLiks, Which requires a showins of exImordinary Circumstences Justifyies The delay in obfinins The new EvidexcE. The court found that Perkies had railed in meet the Stict Standard by which Pteas of ACTual innocence are measured because he had notshown that TAKiAs inio accountanthe Evidexce, it was more Lirely than not thathe rea sordable juror would have convicted him. Perkies appented and the Six Circultcourt Stanked a certificate of appellabilif COA or the issue of reasonable dilisexce as a precondition To -fellies or ACTUAL INrdoceXce as a satiway to Adjudication of B federal habers corpus Petition or the merits? The courts avower to this question was 'ko' and reversed the district courts dismissal of Perkies' habers Petition.
Herefore, The Petitioner in the instant case has shown where his claim of ACtual innocence does not stand above butis Tied To a corsitutional violation durics his trial which merits the reLief Sought of anillegal conviction and incorcern.
*9 Tion, by demonsfatiws triad courseLS incomperence in notDoprinins, and PresenTies the FACTS or a crucial element of the charge with which he was convicted. The Pettitoker inclainins that he is being urecessorably denied redress on his claim that the evidence used to convictbin was inssurficient poses the question: CAN A Jurisdictional defect be waived or procedurall' default ed? Us. X voG1, 37483 d 976 (10th Gr.2001). The Pettitoker claims that the record shares on is pace that irreperative assistance by coursel in the case at hand existed and had itnet been for such ireprectiveness and counsels arbitrary approach which prejudiced this Pettitoker for counsels failure To preserve claims by confersporaneous objections ther The results of the procediress would have been different and Favorable to the Pettitoker. The AEDPA, leaves a window of opportunity To Gward mainst extreme pabfunctors in the state criminal justice system, as in the case at hand and such profeet ion is invored herein forrelief of an illesal conviction and incarceration. The Pettitoker emphasizes the fact that he conits have been fulica mistherely in basis their opinion or emaneous allestations that the victim had stated that he had been stibbed by this Pettitoker when the trial transcipt shows the victim's desitatory clearly and unequivocally satiws that he does not know
*10 Who stibbed or cuthin with a minfe. (ct. a. vol. 3, ar 44). The pertioner beins a lawmivor the law and anindient Too poor to retain counsel does not wnive any nispis and pnays For bMy other telief deemed proper by this court.
Because the pertioners thiol counsel didnotinvestigate The staffs witness (alab maiz, The Federal districtcourt didnote on page elever (i) in its memorandum and decomperadition (documentiz, filled 07/09/13) that "Respondent does notconcern that maiz was unavailable for thiol or that valueds was given and opportunity before thiol to cross-examine him. Thus, the testimony of officers mendez and modriquez respondies statementis made by maiz was abjectionable."
Conclusion and Prayer Wherefore, premises considered, the pertioner Prays the court of criminal appeals srank the relief sould of anillegal conviction and incarceration.
Irrate's Declanition I, Rudy willado, The pertioner presenity incarcerated in the arnsey 1 unitor the Texas Department of criminal justice in Rosbaron Texas, declare under perality of perjury, that The facts stated herein are true and correct.
Rudy Yollado 431597 RANKED