Nesby, Rodgy Lee

1 ‘ ` W, '\0`\ fm AECEW- lN @MOPCRMMA¢ mpEALS ' - F Ex PARTE §-- IN THE coURT 0 JUN 2c 313 § cRIMINAL APPEALS RoDGY LEE NESBY § AUSTIN, TEXAS AB@M@@SWC¢@W APPLICANT\S OBJECTION AND GENERAL TRAVERSE TO THE HONORABLE JUDGE OF SAID COURT: _Now comEs RODGY LEE NESBY, Applicant (hereinafter Nesby) by and through pro se and files this his formal objection and a formal denial of factual allegations made in the State's answer. In support thereof would show the Honorable Court of Criminal Appeals as follows: I. OBJECTION Nesby makes a general objection to the State's answer. up HISTORY OF THE CASE Nesby has never received an evidentiary hearing or the opportunity to fully develop the record. 1 `4 l k l 111. ARGUMENT l. First and foremost the Constitution of the United States -of America guarantees the privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public safety may require it. Art.I, Sec 9 U.S.C., see, Id., Nesby filed his first application for Writ of Habeas Corpus February 8, 2006 which was denied without written order on _March 1, 2006. l Dismissal of successive or potentially abusive habeas claims is not automatic, if petitioner can show cause for failure to raise or fully develop claims, and prejudice arising therefrom, district court may consider merits of such claims. Washington v. Delo, 51 F3d 756 (8th Cir. 1995). Heffernan v. Norris, 48 F3d 331 (8th Cir. 1995) Habeas petitioner may excuse procedural bar and abuse of writ by showing cause and prejudice, or actual innocence. Nesby's rights to competent and effective assistance of counsel, and to due process of the law as guaranteed by the 5th, 6th, and 14th Amendments to the United States Constitution, -Article I,'Section 10,,12, and 19 of the Texas Constitution are 'alleged to be violated in each of his applications. -Nesby had a constitutional right to competent and effective assistance of counsel at trial and on appeal, where as in Teaxas, the appeal is a matter of right, under State law. Evitts v. 'Lucey, 372 U.s. 387, 393(1985); 'Douglas v. california, 372 u.S. 353, 356(1963); Goodwin v. Johnson, 132 F‘3d 162, l70(5th Cir. l997); U.S¥C. A 6,14. Regardless of whether counsel is retained. Robert V. State, 705 S.W. 2d 803, 805 (Tex. Crim. App.1986); Prudhomme v. State, 28 S.W.3d ll4(Tex.App.¥Texardana 2000); Article.I, Section 10, 19 of the Texas Constitution. The appropriate vehicle for seeding an out-of-time appeal is by writ of habeas corpus from the Court of Criminal Appeals, pursuant to Texas Code of Criminal Procedures, Ann, art. 1107 ,(Vernon Supp. 2002); Portley v. State, 89 S.W.3d 188,189 (Tex. App.-Texaskana. 2002); Ashorn v. Statewj77 S.W‘3d 403,409(Tex. App.-Houston [lst Distz] 2002 pet. filed); \Rivera v. State, 940 S.W.2d 148,149 (Tex.App.-San Antonio l996,'No pet.)} George v. State, 883 S.W‘2d 250,251 n.3(Tex.App.-El Paso l994,no pet.); see also, Olivo v. State, 918 S‘W.Zd 519,525 n_B£Tex.Crim.App. l996)(denied of a meaningful appeal due to ineffective assistance of counsel is a proper ground for habeas corpus relief.). 2. APPLICATION OF LAW TO FACTS: Nesby's habeas court judge failed to order the Warden of, the William P. Clements Unit of the Texas Department of Criminal Justice to produce Nesby in his courts Ya v. Maugans, 24 F3d 500 (3rd Cir. 1994) Warden of prison or facility where detainee is held is considered "custodian" for purposes of habeas corpus action,mas warden has day-to-day control over prisoner and produce actual body. Nesby's Habeas Court Judge failed to order and evidentiaryy hearing to expand the record for his claims of ineffective assistance of counsel. Chapter II of the Texas Code of Criminal Procedures provides the procedures for Habeas Corpus. The writ of habeas corpus is the remedy to be used when any person is restrained in his liberty. It is an "order" issued by a court or judge of competent jurisdiction, directed to any one having a person in his custody, or under his restraint, commanding him to produce such personi at a time and place named in the writ, and show why he is held in custody or under restraint‘ Art ll¢ol chcc¢C¢lSeelIda Further An application for writ of habeas corpus y ,filed after conviction in a felony case, other than a case in which the death penalty is imposed, must_be filed with the clerk of the court in which the conviction being challenged was obtained, and the clerk shall assign the application to the court. When-the application is received by that court; a writ of habeas corpus, returnable to the Court of Criminal Appeals, shall issue by operation of law. Art 11.07, sec.3(b),see,1d. 'Nesby urges that there are controverted, previously unresolved facts which are material to the legality of his ,confinement, and because his trial counsel or his appellant counsel where not required to respond to his allegations of ineffectiveness he was prejudicedl and the failure of the court to issue the proper orders he has filed subsequent applications. Nesby further urges that pro se litigants pleading are to be construed liberally and held to less stringent standard than formal pleadings drafted by lawyers; if court can reasonably read pleadings to state valid_claim which litigant could prevail, \ it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construct -ion, or litigant's unfamiliarity with pleading requirements. Simmons v. Abruzzo, 49 F3d 83 (2nd Cir.l995); Feiran v. Town of Nassau, ll F3d 21(2nd Cir. 1993); Boag v. MacDougall, 454 U.S. 364 , 70 LEd2d 551 ,102 S 0t 700(1982; Haines v. Kerner, 404 U.S. 519 , 30 LEdZd 652, 92 S Ct 594 (1972). Nesby has been denied his due process right to effective assistance of counsel at trial and on appeal, in violation of his 14th Amendment due process right under the federal constituti ~ion and Article I, Section'10,19 of the Texas Constitution... therefore, Nesby is entitled seek a Writ of Habeas Corpus. Nesby should be returned to the point in time at which he can obtain a meaning review, with a fully developed record. Cf. Ex parte Coy,909 S.W. at‘928;HCf Olivo v. State, 918 S‘W. 519. Nesby urges that these specific facts as detailed herein support his claims..Ex parte Rains, 555 S.W.2d 478 (Tex.Crim; App.l976){ -Ex parte Hogan, 556 S.W. 2d 352 (Tex.Crim.App.l977). Nesby renews his request qpr an evidentiary hearing and expansion of the record. Ex parte Hargett, 819 S.W.2d 866,868 (Tex.Crim.App.l99l); EX parte Empey, 25 757 S.W.Zd at 777. CONCLUSION WHEREFORE Nesby prays that cause and prejudice is shown herein and that writ of Habeas Corpus issue. Respectfully Submitted Y Clements Unit-TDC#1159956 9601 Spur 591 Amarillo, Tx. 79107-9606 DECLARATION I Rodgy Lee Nesby being presently incarcerated in the Bill Clements Unit of TDC, declare under penalty of perjury that the foregoing is true and correct. CEKT‘lFlc AT£ o€ Se\z\lic€ \ I.- cedin ama\ ule'r`\¥`l 4\-\0.¥ a copy ¢>¥ Hr\e. core gaines \'m.s \ocen .Q~e.v\aeo\ \:1\| P\uc`\n€j %\'\c same in Y§xs¥ C\e»ss U\.S. mc..}\\ a¢\a\\~e_ssee\. ¥o \'\v\`e. co\\ovl :¢\'\€.`5 § m.».»(»