Case Information

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Count of Criminal Appeals No: WA 183,424-01 Q2,434-01 Trial Court no: 205 CRN 630 DI (A) RECEIVED IN ExPork Gabriel Cardona

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In the 44th BBRURY OF CRIMINAL APPEALS
DUSTRICT COLlOT
WeGBe CONNY, TXJUN 292015

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Abel Acosta, Clerk

APPLIANTS MEMORIANOUN IN REPLY TO THE STATES RESPONSE TO THE APPLICATION FOR 11.07 WRIL

Now comes Gabriel Cardona, apphieint pro-se and files this Memorandum in reply to the States response to the application of wort of Habers Corpus and respectfully show the Court as follows:

1. FACTS

The State filed a response to the Appieants list of Habers Corpus on the 22 nd day of May 2015, the Appieant filed his application through certified wail. Certified no: 7041 1850 0201 2048 9285, and dehivery dade being the 30 th day of April 2015. Certified wail was delivered to the District Dlete.

In its response the State claims that appieants Double Jeopardy claim is swittlen." The State also invoked the laches protection as a bar to the Application. Although the State cites case law in support of its part that the State need not make any particularred showing of prejudice, the State nevertholes states it suffered prejudice in its ability to investigate and preoprea deffuse to the Application" Alternatively, the State prays the Court to require the Appieant to satisfy one of three components to climb over the laches barrier.

The State further claims that the Appieant fails to meet the 1103 standards with respect to a factual basis" and facts not being pled to demonstrate "Strickland prejudice."

Lastly, the State presents an affidavit signed by Cansel Almarre 2000, after being duly suemed, and was notaried as being true. Cansel states there was no issue regarding Double Jeopardy, thiproughly investigated the facts of the case and advised appieant accordingly, and that appieants self-define theory had no ment."

11. Argument

the filing of the states response is untimely. In accordance with Article 11.07 of the Texas Code of Criminal procedures, the State has 15 days to file a response. Proof of delivery dates 410415 for certified mail no: 7041 1850 0201 2048 9285, that is the 30 th day of April 2015. The States response filing date therefore would be expred on or about the 14 th day of May 2015.

Double Jeopardy: The Appieant filed a Memorandum of Law in support of his Habers Corpus Application wherein Grand I he cited U.S. Supreme Court prececlent, including Texas caselaw prececlent, supporting his Double Jeopardy Claim (Geo. Memo of Law). The State does not cite any caselaw in support of its contation The States response to the Double Jeopardy Claim is unsupported and contrary to Texas Precedent and Supreme Court prececlent. The State illegally obtained the plea.

Lachesi: The State is not materially prejudiced by the delay in filing the 11.07 Application and its not prejudiced "in its ability to investigate and prepare a deffuse to the Application"; 1) the State is in possession of the offence report, the Laredo Police Department has the entire report as well which investigafor Robert Garcia and Joe Barea have been giving the media like flyas; 2) The Federal Government filed a Travel Act" indictment against codefeodants, cooaspirates and appieant, which is still officially open and inculuct this case as part of its such deering element; 3) the State and the Federal Government have been cross engaging their witnesses, codefeodants, with each other to the benefit of one another; 4) the federal government has secured witnesses,

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evidence, and testimony from where the State could have conducted a paper investigation and 5) Must importantly, 10 excerlao Tovar, a codefradant and alleged shuster, is in cusstedy and the State benefits from such sinee Tovar was secured as a Federal withers and not proceated in State Court. Tovar has cuspeated with both the State and Federal Government, and certainly the State is in a wich more fowor. able position.

Applicant also filed a "Recuest for due Ceeorailuy of clams" wherein applicant giver a theraugh explanation for such delay in filing the Application. Such exphoration should satisfy the justifiable excuse" or "excusable neglect" requisite. (See: Applicants Request for due ceeorailuy", ... including its attachment of "Exhibits" as proof for such delay.)

Herefifure, the applicant satisfies at least two of the three components the State invokes. Accordingly, the Laohes protection should fail.

FACIUM GASIS AND PLEMHOICE:

Applicant stifled his petition in the cumulative error" Fation rather than the single error". That is, that the cumulative effect of camels errors prejudiced him. In that applicant did not (could not have) make a fully informed and conscious choice i.e. intelligent, knowingly thus voluntarily admission of guilt. The State appases the claim in its response in the individual error" or" single error" notion. The U.S. Supreme Court has held that the prejudicial effect of Camels' errors must be considered cumulatively rather than individually. See Williams v. Taylor, 529 U.S.342, 120 S.Ct. 1145,1515, 1116 L.Ed.2d 359 (2000). The Court of Criminal Appeals has also recognized and ruled in that concept. See e.g. Ex Rarite welborn, 155 S. 602 d 391 (1962). App. 1140 Applicant styled his petition in that had Cansel done"all the above" and advised applicant accordingly, if is reasonable to conclude that these exists a reasonable probability that one would not have plead guilty but proceeded to trial. See eg. Ferrora v. U.S. 476 F.2d 278, 2614 (1972). Receivable probability" is a probability sufficient to undermine confidence in a belief that the (applicant) would have entered a plan.) Applicant would also respectfully remind the Court that the U.S. Supreme Court has held that prc-se filings should be construed literally. The interest or ends of justice so requires. Soe e.g. Haines v. Keiner, 104 U.S.519, 520, 130 L.Ed.2d 1251 (1972). Applicant is not a lawyer, applicant is proceeding prase with what he has learned through thornr and this thes but nevertholes makes the best effort to be as precise as possible. Applicant filed an "Affidavit of Facts" as well wherein he explains to the Court how he was affected and why he plead guilly. (See Affidavit of Facts &; General) His bling"construed liberally" or by reading the petition as stated above, in the cumulative error"concept. establisheds that applicant did not make an intelligent, knowing and voluntary admission of guilt, prejudiced by Ccunsel's errors.

Cansel Atparas is affidavit is conflicting in several respects. Cansel states he" thoroughly investigated the facts of the case and advised applicant accordingly". However the judicial docket for this case does not reflect a motion for discovery or discovery under being filed. Cansel also stated for the record that the state had not praided a type to him in Tebnuary 12,2007. Clearly Cansel is dependent of the State and these facts prove that Cansel did not in fact "thoroughly" investigated the facts of the case. Furthermore, Cansel states that there was no issue regarding Double-Jeopardy. However, there exists Supreme Court precedent as well as Texas president regarding Double Jeopardy Violations and pleas (casslains cited in Applicants Memorandum of Law.) thus, it piques that Cansel was incompetent, did not know the laws with relation to this case and could have not advised applicant accordingly. How can applicants plec be an intelligent admission? Lastly, Cansel states there was no merit in applicants self defense claim. Applicant never raised a self defense claim. Cansel seems to play the States' card, depend on the State and does not review applicants claim

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(or facts of the case) and answer accordingly. Caused oneedes to all other claims.

III. Adequate Record

Applicant respectfully reminds the Court that an adequate record is imperative to properly evaluate, ineffective assistance of Cansel claims."See e.g. Mathaney v. Anderson, 253 F. 3d at 1040 Ccting U.S. v. Graves. 103 F. 3d 1528,1535 (7th Cir.1991). And a petitioner is 'entitled to an evidentiary hearing... in order that he might be given an opportunity to offer evidence to develop the factual basis of his claim."id at 1049 (see Honset ationeragery)

Applicant filed a Motion for Evidentiary Hearing with his application.

IV. Coaclusion

WheRefore, PreHises ConIOEResi, applicant prays that the States response be rejected, and for further relief to which applicant may be entitled.

Mailed:

Respectfully submitted June 2nd, 2015 Gabriel Cardona RAH1072 All Red Unit

Certificated 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 WEB GX1NYV, LAREO, TEXAS, with address of 1110 Victoria Stedol. Zis Code 78040. Recipient being ADA Michael Buliewicz.

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BJECT: State briefly the problem on which you desire assistance.

I would like to ma a legal package through ecerthed mail, return receipt requested. Could you plecuce

some and pick up the packcage to weigh plecuse. Determine the postage.

$14-60$ (Rev. 11-90)

CERTIFIED MAIL RECEIPT

SENDER COMPLETE THIS SECTION

• Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired.
• Print your name and address on the reverse so that we can return the card to you.

• Attach this card to the back of the malipiece, or on the front if space permits.

• Article Addressed to:

Estrer Despllado-clerk IIo Victoria st. (stc. 205) Lovedo, TX 76042

COMPLETE THIS SECTION ON DEUVERY

| A. Signatton | | | :--: | :--: | | $x$ | | | | | | B. Received by (Printed Name) | C. Date of Delivery | | JUN 0 | 82012 | | D. Is delivery address different from item 1? | | | If YES, enter delivery address below: | | | | |

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2. Certified Mail ${}^{\text{®}}$ (Printly Mail Express ${}^{\text{m}}$

3. Registered $◻$ Return Receipt for Merchandise $◻$ Insured Mail $◻$ Collect on Delivery

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5. Article Number (Transfer from service label) PS Form 3811, July 2013
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