in Re Zahir Querishi

Full text

14- iff- )M^cv

FILED IN WRIT NUMBER 14th COURT OF APPEALS HOUSTON, TEXAS 1 FEB 18 2015 IN THE COURT OF APPEALS

FOR THE CHRISTOPHER A. PRINE 0L6AK FIRST DISTCICT

AT HOUSTON, TEXAS

IN RE ZAHIR OUERISHI, RELATOR

CHRIS DANItfL-RESPONDENT

HARRIS COUNTY DISTRICT CLERK

ORIGINAL PROCEEDING

PETITION FOR WRIT OF MANDAMUS

MR.ZAHIR QUERISHI

INMATE # 801000

RAMSEY UNIT

1100 FM 655

ROSHARON, TEXAS

77583

PRO SE

IDENTIFICATION OF PARTIES (ii) INDEX OF AUTHORITIES (ii)

STATEMENT OF THE CASE (1)

STATEMENT OF JURISDICTION (1)

STATEMENT OF THE FACTS (1)

ARGUMENT (2)

PRAYER (41

UNSWORN DECLARATION (4)

APPENDIX

EXHIBIT "A"

EXHIBIT "B"

INDEX OF AUTHORITIES

STATE CASES:

AGUILAR V. STONE 901 S.W.2d955(Tex.App.-Houston 1st Dist. 1995) (1)(3) Boyattia V. Hinojosa 18 S.W.3d 729(Tex.App.-Dallas 2000) (2) Broom V. McMasters 992 S.W.2d 659(Tex.App.-Sallas 1999) (3) In Re Chavez ^2 S.W-3d 225(Tex.App.-Amarillo 2001) (2)

TAC Americas Inc. ,V.Boot-he 94 S.W.3d 315(Tex.Ann.-Austin 2002) (2) CODES:

V.E.C.A.., GOVERNMENT CODE §22.221(a) (1) V.T.C.A., FAMILY CODE §56.01(o) (1)

RULES:

TEX.R.APP.P. 52 (1) TEX.R.CIV.P. 99 (D(2)(3) TEX.R.CIV.P.106(a)(2) (2)(3)

TEXAS CONSTITUTION:

ART.1§12 (3) ART.5§8 (1)

IDENTIFICATION OF PARTIES

RELATOR: ZAHIR OUERISHI RESPONDENT: CHRIS DANIEE

INMATE*801000 HARRIS COUNTY DISTRICT

RAMSEY UNIT CLERK

1100 FM 655 P.O.BOX 4651

ROSHARON, TEXAS HOUSTON , TEXAS

77583 77210-4651

(ii)

IN RE ZAHIR QUERISHI/ RELATOR § IN THE COURT OF APPEAT.S V. § FIRST DISTRICT CHRIS DANIEL - HARRIS COUNTY DISTRICT § . HOUSTON, mc"YAS CLERK §

WRIT OF MANDAMUS

TO THE HONORABLE FIRST COURT OP A^EALS:

Comes now relator Zahir Querishi, acting pro se, in the above styled cause and files this petition for writ of mandamus with attached exhibits

pursuant to Tex.R.APP.P. 52 and V.T.C.A., Government Code §22.221(a)- and presents Hie fol i<~>wi n^ in sun^rt thereof:

STATEMENT OF THE CASE

On January 05, 2015, relator properly filed a petition for writ of habeas corpus pursuant to Article 5§8 of the Texas Constitution and V.T.C.A., Family Code §56.01(o) with attached motions with the respondent. The petition was filed in the 315th District Court under the cause number 86707 stvled "IN THE MATTER OF ZAHIR QUERISHI V. THE STATE OF TEXAS."

STATEMENT OF JURISDICTION

Jurisdiction is based in the First Court of AnDeals in Houston, Texas. See Aquilar V. Stone 901 S.W.2d 955(Tex.App.-Houston[1st Dist.] 1995).

STATEMENT OF THE FACTS

Accompanying the properly filed petition for writ of habeas corpus was a formal request for issuance of citation. See exhibit "A". Due to the rules of the habeas proceedinq being governed by the Tex.R.Civ,P. the Delator made a formal request for issuance of citation pursuant to Tex.R.Civ.P. 99 and 106(a)(2). See Exhibit "A." On January 14, 2015, relator mailed the respon dent another letter inquiring about the issuance of citation. See Exhibit "B." To the day of this writing the respondent has failed to fulfill his duty and issue the reauested citation upon the respondent cited in the habeas petition.

ARGUMENT

1. The respondent has refused to issue the reauested citation.

" ...Had a legal duty to perform a nondiscretionaryaact, (2) was asked to nerform the act, (3) and failed or refused to do so." In Re Chavez 62 S.W.3d 225,228(Tex.App.-Amdrillo 2001).

Pursuant to Tex.R.Civ.P. 99(a): "Upon filina of the petiton, the clerk, when requested, shall forthwith issue a citation and deliver the citation as directed by the requestina party. The paqt?stequesting citation shall be responsible for obtaininq service of the citation and a copy of the pet ition.

Tt is well settled that, " generally, purpose of --itation is to qive court jurisdiction over Darties and to provide notice to defendant that it has been sued by particular party, assertina a particular claim, in order to satisfy due process and allow defendant oppertunity to appear and defend action." TAC Americas, Inc. V.Boothe 94 S-W.3d 315,318(Tex.App.-Austin 2002)

"Under rule 99 of the Texas Rules of Civil Procedure, it is the duty of the clerk both to issue citation and deliver them as directed by the party rewauesting cisstance. See Tex.R.Civ.P.99(a). The clerk does not com plete his duty under the rule until he delivers the citation as directed." Rovattia V. Hinojosa 18 S.W3d 729,733-34(Tex.Apr..-Dallas 2000).

(2)

The respondent has a legal dutv to perform a nondiscretion^ry act pur suant to Tex.R.Civ.P. 99(a) which the relator requested of him and he failed to Derform.

Relator has satisfied prong one.

" the courts look to whether the plaintiff had, at the time suit was filed, a "bona fide intention" to hase process issued and Served." Broom v. McMaster 992 S.W.2d 659,664(Tex.App.-Dallas 1999). In exhibits "A" and "B" attached to this petition illustrate relator's demand for the perform ance of the issuance of citation pursuant to Tex.R.Civ.P. 99 and 106(a)(2).

Relator has satisfied pronq two.

Ill

Relatoer has exercised diliqence in this matter to have citation issued. The relator has clearly presented constitutional claims in his habeas pet ition that warrant the respondeat in his habeas petition to be called to answer. Tt should be remembered that the relator has a constitut.i.onal right to a writ of habeas corpus. See Art.l§12 of the Texas Constitution. The district clerk has refused to perform his legal and nondiscretionary act.

In Aquilar V. Stone 901 S.W.2d 955(Tex.App.-Houston[1st Dist]1995) this court held that, "Had relator requested the district clerk to serve citation by registered or certified mail pursuant to Tex,R.Civ.P.103 & 106(a) (?) and the clerk has refused to doso, mandamus would be an appropriate remdey." The relator has requested citation pursuant to Tex.R.Civ-P. 106(a)(2) add therefore mandamus is the appropriate remedy in this matter. Relator has satisfied pronq three.

(3)

PRAYER

Relator prays that this Honorable Court issue a mandamus to compel the respondent to issue the citation as he had requested.

UNSWORN DECLARATION

Pursuant to V.t.c.a., CIVIL Practices & Remedies Code §132.001-5132.003, "I, Zahir Querishi #803)000, being presently incarcerated in the Texas Depar tment of Criminal Justice - Institutional Division, Ramsey Unit in Brazoria County, Texas , declare under the penalty of periurv that the foregoing is true and correct." Executed on tELR^WH 9 ;, ?Q(O

Mr.Zahir Querishi Inmate #801000 Ramsey Unit 1100 FM 655 Rosharon, Texas 77583

(4) X I „ >'

Mr-Zahir Querishi #801000

Ramsey Unit 1100 FM 655

Rosharon, Texas

77583

— * ir> 6) >- *— December 17, 2014 H go ^ a

Mr-Chris Daniels «•= ' Harris County District Clerk Uq P.O.Box 4651 k£.; Cav6e uo: 2&707 O Houston, Texas E F £ 77210-4651

Dearest Clerk,

Peace and blessings to you. Enclosed please find four (4) copies of writ of habeas corpus with attached motions. All these documents are to be filed in the 315th District Court of Harris County for ruling as soon as the business of the court permits. Since the Family Code has no provision for habeas writs the rules default to the Tex.R-Civ.P.For this reason it is imperative that citation must be issued upon the Harris County District Attorney. Also in this envelope is a self-addressed stamped envelope that has a copy of every document that has to be filed. Please place a filed mark upon the face of the habeas application, each motion, citation request, and a copy of the letter. Should there be any questions or concerns please do not hesitate to Jg contact me at the address above.

Sincerely,

XUAciU^ yi(Jcuol((

CAUSE NO: 86707 IN THE MATTER OF ZAHIR QUERISHI, § IN THE 315TH DISTRICT COURT PETITIONER § OF HARRIS COUNTY, TEXAS

V. § THE STATE OF TEXAS § — £ <D >- £> His >> c

to o u I REQUEST FOR ISSUANCE OF CITATION

Pursuant to Tex.R.Civ.P. 99 I am hereby formally requesting thatTTSiis clerk issue a citatiion upon the respondent who is the District Attorney M m>• F of Harris County, Texas, at 120^ Franklin, Houston, Texas, 77002.

Please issue the citation pursuant to Tex.R.Civ.P. 106(a)(2) or in a manner similar to the procedure announced in Article 11.07 of the Code of Criminal Procedure. In essence, the District Attorney must be served with a copy of the writ and attached motions along with the citation.

Sincerely,

Mr.Zahir Querish1' ' #801000 Ramsey Unit 1100 FM 655 Rosharon, Texas 77583

CAUSE NO: 86707

IN THE MATTER OF ZAHIR QUERISHI, § IN THE 315TH DISTRICT COURTf ' _.*£ LO PETITIONER § OF HARRIS COUNTY, TEXAS E,3 ••= • 5 >;

THE STATE OF TEXAS, RESPONDENT § Oq <

fe .

WRIT OF HABEAS CORPUS g F ft TO THE HONORABLE JUDGE OF SAID COURT:

Comes now petitioner Zahir Querishi, acting pro se, in the above styled and numbered cause and files this APPLICATION FOR WRIT OF HABEAS CORPUS pursuant to Article 5§8 of the Texas Constitution and V.T.C.A., Family Code 56-01(o) with attached MOTION TO UNSEAL THE RECORD and a MOTION FOR A HEAR ING, and presents the following in support thereof:

HISTORY OF THE CASE

On September 30, 1994, the 315th District Court of Harris County, Texas, found the petitioner to have engaged in delinquent conduct for the offences of capital murder and attempted capital murder. The court assessed a determiate sentence of forty years and transferred the petitioner to the custody of the Texas Youth Commission.:On October 14, 1997, the trial court conduc ted a hearing pursuant to V.T-C-A-, Family Code §54.11 to determine whether to transfer the petitioner to the custody of the Texas Department of Criminal Justice. The court determined that the petitioner be transferred.

STATEMENT OF JURISDICTION

Jurisdiction is based in the 315th District Court of Harris County, r Texas, which found the petitioner to have engaged in delinquent conduct. See Ex Parte Valle 104 S-W.3d 888(Tex-Crim.App.2003).

CONSTITUTIONAL CLAIM

CLAIM ONE: THE RESPONDENT VIOLATED THE PETITIONER'S GUARANTEE TO' BE 'CON FRONTED WITH THE WITNESS AGAINST HIM' SECURED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND EXTENDED UPON THE STATES THROUGH THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

SUPPORTING FACTS AND ARGUMENT

"TheDConfrontation Clause of the Sixth Amendment guarantees the right of a criminal defendant "to be confronted with the witness against him." That guarantee, extended against the States by the Fourteenth Amendment, includes the right to cross-examine witnesses. See Pointer V. Texas 85 S.Ct.1065,1068(1968). Where two defendants are tried jointly, therefore, the pretrial confession of one of -;•• them that implicates the otheriis not admissable against the other unless the confessing defendant waives his Fifth Amendment right so as to permit cross-examination." Cruz V New York 107 S-Ct.1714, 1717(1987).

Petitioner was jointly tried with codefendant S-Galloway. Codefendant S.Galloway gave a pretrial confession that "expressly implicated" the pet itioner. The respondent placed S.Galloway's pretrial confession on an over head projector for the jury members to view. The pretrial confession was unredacted and there were no limiting instructions given to the jury mem-

(2) bers.

Codefendant S.Galloway never waived his Fifth Amendment as to permit cross-examination. The petitioner pled not guilty and maintained his inn

ocence during the trial proceeding. Codefendant S.Galloway's pretrial confession "expressly implicated" the petitioner, was powerfully incrimi nating, and proved to be devastating to the petitioner's defense.

In Bruton V- United States 88 S -Ct -1620 (1968), the Supreme Court held that the Sixth Amendment is violated "where the powerfully incrimina

ting extrajudicial statements of a codefendant, who stands accused side by side with the defendant, are deliberately spread before the juryin a joint

trial. Not only are the incriminations devastating to the deferidant but their credibility is inevitably suspect---" at 1627-1628-

The actions of the respondent stand in direct conflict with Bruton and

as a consequenceviolated the petitioner's right "bo be confronted with the witness against him" secured by the Sixth Amendment to the Unified States

Constitution.

PRAYER

The petitioner prays that this court Order the records unsealed,(2) make a proper determination on the merit of the constitutional claim pre sented, (3) grant this application for writ of habeas corpus, (4) Order a hearing in this matter,and (5) grant the petitioner a new trial-

Respectfully submitted,

Mr-Zahir touerishi #801000 Ramsey Unit 1100 FM 655 Rosharon, Texas 77583

(3)

DECLARATION

Pursuant to V-T-C-A., Civil Practices & Remedies Code §132.001-132.003, " I, Zahir Querishi #801000, being presently incarcerated in the Texas Dep artment of Criminal Justice - Institutional Division, Ramsey Unit in Brazoria County, Texas, declare under the penalty of perjury that the foregoing is true and correct. Executed on JJ\£jL£jT>?iIE^ |G> 7f)lM •

U0 hi Mr.Zahir\Querishi #801000 \ Ramsey Unit iioo fm^s Rosharon, Texas 77583

CERTIFICATE OF SERVICE

Respondent was served with a true copy of the above and foregoing via

regular U-S.Mail on December \ ip 2014, at Office of the District Attorney of Harris County at 120(J) Franklin, Houston, Texas 77002.

Mr. Zahir~\QuerishiV-V #801000 ^ Ramsey Unit 1100 FM 655 Rosharon,Texas 77583

(4)

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IN RE ZAHIR QUERISHI,RELATOR § IN THE COURT OF APPEALS V. § FIRST DISTRICT CHRIS DANIEL-HARRIS COUNTY DISTRICT § HOUSTON, TEXAS CLERK, RESPONDENT §

MOTION FOR SUSPENSION OF RULES

TO THE HONORABLE FIRST COURT OF APPEALS:

Comes now relator Zahir Querishi, acting pro se, in the above styled cause and files this MOTION TO SUSPEND THE RULES pursuant to Tex.R.App.P. 2, and presents the following in support thereof:

Relator requests that this Honorable Court suspend the copy rule pur suant to Tex.R.App.P. 9.3(a)(1)(A) and Tex.R.App.P. 9.5 in this oriqinal proceedinq. Relator is currently confined in the Texas Deoartment of Criminal •Tustice and lacks access to a cooier machine tn fulfill tho ronn;"oments of the copy rule and, by extension, service of documents upon the respon dent .

WHEREFORE PREMESES CONSIDERED THE relator pravs that this Honorable o-iuri- ~~"3nt this motion.

Respectfully submittec

Sj/h.luU'^ wiLiiDtc*- 2-9-/S Mr.Zahir\ Querishi Inmate W)1000 Ramsey Unit 1100 FM 655 Rosharon, Texas 77583

fluffs*- FIRST COURT OF APPEALS TWgsy Cisn, HOUSTON. TEXAS

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AT HOUSTON, TEXAS

IN RE ZAHIR OUERISHI, RELATOR

HARRIS COUNTY DISTRICT CLERK

ORIGINAL PROCEEDING

PETITION FOR WRIT OF MANDAMUS

MR.ZAHIR QUERISHI

RAMSEY UNIT

ROSHARON, TEXAS

PRO SE

TABLE OF CONTENTS

STATEMENT OF THE CASE (1)

STATEMENT OF JURISDICTION (1)

STATEMENT OF THE FACTS (1)

ARGUMENT (2)

PRAYER (41

UNSWORN DECLARATION (4)

APPENDIX

INDEX OF AUTHORITIES

IDENTIFICATION OF PARTIES

RAMSEY UNIT CLERK

ROSHARON, TEXAS HOUSTON , TEXAS

WRIT OF MANDAMUS

STATEMENT OF THE CASE

STATEMENT OF JURISDICTION

STATEMENT OF THE FACTS

ARGUMENT

PRAYER

UNSWORN DECLARATION

HISTORY OF THE CASE

STATEMENT OF JURISDICTION

CONSTITUTIONAL CLAIM

SUPPORTING FACTS AND ARGUMENT

PRAYER

DECLARATION

CERTIFICATE OF SERVICE

MOTION FOR SUSPENSION OF RULES