Taylor, Elijah Isaiah

~~ID/-D~ November 1, 2015

Elijah Taylor James V. Allred Unit 2101 F~ 369 North 'Iowa Park, Texas 76367-

A b (2! 1 ''·A c 'oe t a ·-v' 1'' Cl-2rk of Court COURT §,:ECE!V£o IN Court of Criminal Appeals Of Texas . CRIMINAL APp Office of th-2 Cl-2rk J\!f'l• cALs P.O. Box 123G8 . ul/ 09 2015 AiJst\i'n ,·¹ Teixa§1:787ll /5_iJ:.~~i:in, T:.'~x.;:;.·..::·..

RE: Ex Parte Taylor 7:-:;fiJI.

I. -- _.AliJelfiJ coera. Clerk \ \ Dear Clerk of Court

Enclosed please find an orig~nal copy of tje Motion For

Leave To File Relator's Original Petition ForJWrit Of Mandamus, ~ and an original copy of Relator's Original Petition For Writ Of

Mandamus to be filed with this Court.

The P-2titioner/Relator pleai to this Honorable Court of Criminal Appeals of Texas that he does~~t have access to a copier nor does the prison he reside at enable prisoner's with access to a copier, thus, Taylor request that this Honorable Courtt supply the Dallas County District Attorney, Mrs. Susan Hawk with the necessary copies.

Your time and consideration is greatly appreciated. Thank you.

This document contains some Sincerely, pages that are of poor quality at the time of imaging.

Elijah Isaiah Taylor Please forward a copy to:

!s/lJ.jyv~ Clerk of Courts Frank Crowley Courthouse 133 N. Riverfront Bl~d. Dallas, Texas 75202

RECEIVED IN COURT OF CRIMINAL APPEALS

CAUSE NO. W-11-40599-K NOV Og 2015 NO. WR-83 1 100-1

11J;I~Icf'AHt~SAIAH TAYLOR E~be8 Acosta. Clerk IN T H

.TEXAS COURT OF

EX PARTE CRIMINAL APPEALS

MOTION FOR LEAVE TO FILE RELATOR'S ORIGINAL PETITION FOR WRIT OF r-n\NDAMUS

TO THE HONORABLE JUDGES. OF THE COURT OF CRIMINAL APPEALS: COMES /~OW E i 1 j ah Taylor; hereinafter styled Petit i one5 /Relator 1 ~ro se1 and respectfully moves this Court for leave to file the attached Writ of Mandamus in his own behalf and would show the following:

JURISDICTION

This Honorable Court maintains original jurisdiction under provisions afforded in the Texa~ Constitution in Article 5 § 31 and in the Code of Criminal Procedure in§§§ 46.011 46.11 and SL 89.46. Only the Texas Court of Criminal Appeals has jurisdiction in final post-conviction felony proceedings. Tex. Code of Crim. Proc. Ann. Article 11.07 § 5:\t~= v

The Petitioner/Relator has exhausted all administrative remedies required by the State of Texas prior to bringing this claim for relief in this Court.

The facts set forth in the attached Writ of Mandamus are undisputed 1 substantially true 1 and should be accepted :as '.tEue'~T~ by this Honorable Court.

CONCLUSION

The Criminal District Court has been holding Petitioner/ Relator's Application for Writ of Habeas Corpus pursuant to Art. 11.07 since January 25, 2015, and the motions that were attached have been·pending for the same amount of time. Taylor submitted his Motion for Judgement on Pending Motions on October 1, 2015, In accordance wi~h Inre Tasby,40 S.W.3d 190 (Tex.App. Texarcana 2001) as stated by Judge Grant '' ... a three month period is allowed for the.court to make it's ruling. Tex. R~?.

CERTIFICATE REGARDING SERVICE

I hereby certify that it is my belief and understanding that the Dallas County District attorney Susan Hawk, is a partici-pant in the Court's CM/ECF program and that separate service of the foregoing document is not required beyond the notification of Electronic filing to be forwarded on November 1, 2015 upon the filing of the foregoing document.

CAUSE NO. W-11-40599-K

IDENTITY OF PARTIES

The parties in this case are: 1. Petitioner/Relator

Elijah Isaiah Taylor TDCJ-:-ID #1776071 ->

James v. Allred Unit 2101 FM 369 North Iowa P~rk, Texas 76367-6568

². The State of Texas

Susan Hawk District Attorney of Dallas County Frank Crowley Courthouse 133 N. Riverfront Blvd. Dallas, Texas 75202

CAUSE NO. W-11-40599-K

IN THE COURT OF CRIMINAL. APPEALS OF TEXAS

NO. WR-83,100-1

IN re Elijah Taylor ,.

RELATOR'S ORIGINAL BETTT~0N FOR WRIT OF MANDAMUS

\ TO THE HONORABLE juDGES OF THE-TEXAS COURT OF CRIMINAL APPEALS:

COMES NOW Elijah Taylor ~ the Pet~tioner, pro·se and respectfully moves this Honorable Court to issue a Writ of Ma~damus and order the "Criminal. D:bstrict 1Court Number 4 of Dallas County, Texas'' to either grant or deny Petitioner's Motion for Appointment of Counsel; Motion for a Evidentiary hearing; Motion for tre Court T6 Take Judicial Netic~; Motion T6 Recuse Habeas Corpus Judge; and Motion for Ad Testificant. Petitioner also moves this Honorable Court to compel the Habeas Court, pursuant to Article 11.07 Section 3(c) of the Texas Code of C~minal Procedure, to ha~~ a Findings of Fact and Conclusion Hearing or an Evidentiary Hearing, and f6rward the Supplemental Transcript to this Honorable Court of Criminal Appeals ~s1otdered in a decree iPer Curiam by this Court on May 13,2015, and would show the following:

I. JURISDICTION

Jurisdiction.of this Court is invoked pursuant to the Texas Code.of Criminal Procedure, Sections 46.01, 46.11 and 89.46 and under provisions afforded in the Texas Constitution Article v Section 3 or whatever applicable Texas Code of Criminal Procedure, statue or rule necessary to invoke jurisdiction of this Court. Article 11.07 vest complete jurisdiction over post conviction relief 'from final felony convictions in the Texas Court of Criminal Appeals. citing to Ex Parte Hoang, 872 S.W.2d 694, 697 (T~x.Crim.App. 1993) hold that "The Court of Appeals does not have jurisdiction to review post· conviction Habeas corpus:"

I I . ,-STATEMENT OF THE CASE

Peiitioner is illegally resrained of his liberty by the Texas Department of Criminal Justice-Institutional Division in the All~ red Unit located at 2101 F.M. 369 North, Iowa Park, Texas 76367-

6568 pursuant to an order of conviction imposing after being \ found guilty by a jury on March 23, 2012 of Capital Murder.

Petitioner has been sentenced to Li~e Without Parole.

III. ARGUMENTS AND AUTHORITIES

The Court of Criminal Appeals should issue a Mandamus to the Habeas Court Judge of the Criminal District Court Number 4 directing the Court to tule)oniTayl!or's pending motions which are in conjunction with the Petitioner's pending Writ of Habeas Corpus pursuant to Article 11.07 .. These are the following pending motions: l. Motion for Appointment of Counsel; 2. Motion for an Evidentiary Hearing; 3. Motion to Recuse Habeas Corpus J]Jdge; 4. Motion for the Court to take Judicial Notice; and 5. Motion for Ad Testificant A. Pending Motions

Petitioner understands that the.District ~ourt is busy with civil and criminal proceedings. His case is one of many, and he

apologizes for any inconv~nience .caused. It may be that the Court plans to rule on hi~ motions, or has an internal procedure for doing so. He simply ask that the Habeas Court make a decision on the pending motions so that he may proceed in the Habeas forum

Petitioner contends that in order for the Habeas Court to gain adequate assessment of the facts involved in this case it's imperative that these motions be adjudged. Holmes v. S. Carolina, 126 S.Ct. (2006) when the~Supreme Court held that ''by evaluating the strenght of only one parties evidence, no logical conclusion can be reached regarding the strength of contrar~ evidence offered by the other party to rebut or cast doubt." B~ Inordinate Delay

The Habeas Court has been holding the Petitioner's motions under advisement since J~nuary th~ 25th 2015. Ten ~onths is excessive~andcentirely to lohg. These motions are in conjunction with the Petitioner~~8 Writ of Habeas Co~pus pursuant to Article 11.07, in which this Honorable Court of Criminal Appeals via Per Curiam ordered the Habeas Court to resolve theiissues~~ithin 90 days from the time the order was filed which was May 13, 2015.

This Court also ordered the Habeas Court to forward the supplemental transcript containing all affidavits and interrogatories or transc~iption of the court reporter's notes from any hearing or depositfu6n~, along with the trial court's supplemental findings of fact and conclusions of law within 120 days from the above date. The Habeas Court has yet to follow the decree of this Honor~ble C~urt, ~hd~ib~s1been forty(40) days past the ordered 120 days deadline. Petitioner contends that this is a violation of his Due Process rights guaranteed by the Fourteenth Amendment of the United States of America's Constitution. The lOth Court of

Appeals in a remand stated: ''This Co~rt ha~ said that a mere I lapse of time does not, in and of itself, c6nstitute a denial of

a constitutional right. Baliay v. Patterson, Warden, lOth Cir.

Lee v. State of Kansas, 346 F. 2d 48, But an inordinate, ~eicess­ ) ive d~lay may very well amount to .a denial of Due Process cogni-

zable in Federal Court." Smith v. State of kansas, 356 F.2d 654 (]6th Cir.); Kelly v. Krouse, Warden, 352 F.2d 506 (lOth Cir.).

An inordinate, excessive and inexcusable delay may very well amount to a denial of due process cognizable in Federal Court. Smith v. Kansas, 356 F.2d 654, 655 (lOth Cir. 1966) cert. denied, 389 U.S. 871,888~S.Ct. 154 19 L~Ed.2d 151 (1967) in holding that: "delays in processing defendants post-conviction motions for relief in the state courts deprive him of the swift and impera~·~ tive remedy to which he was constitutional~y entitled, and ~~1~ hence the Federal District Court was ordered to consider the merits of Petitioner's claims for Federal habeas relief~'.

In an abundance of caution the Petitioner Submitted a Motion for Judgement on the pending motions on October the lst 2015, the Habeas Court yet and still failed to take heed, therefore, Petitioner humbly request that this Honorable Court acknowledge the fact that the Habeas Court has undoubtedly violated his Due Process rights and compel the court to hold a hearing on the pending motions promtly, and to submit supplemental transcripts and answers as pr~viously ordered by this Honorable Court.

Trial Court may not arbitr~rily halt proce~dings in a pending case, and mandamus will lie to compel a trial court to hear and rule on motions pending before it. INre Tasby, 40 S.W. 3d -190 (~2 (Tex.App.-Texarkana 2001). Judge Grant concurring with the ruling in Tasby in hi_s opinion ·stated: "I agree with the majority

opini,op,~ but wri t'e separately to point out that even• in a case I which has been heard and then taken under advisement 'by the court

[a three month period is allowed for the court to make it's r~ling. Tex. R. Judicial Admin.?, reprinted in Tex. Gov. Code ~,r Ann. tit.2, subtitle F. App. (Vernon 1998). This is a rule of judicial administration adopt~d by the Supreme Court of Texas] This rule is set forth in Rule 7(2), which requires a district or statutory county court Judge to rule on a case within 3 months after'the case is taken under advisement."

In light of the concurring opinion of Judge Grant Petitioner

asserts to this Honorable Court that in accordance with the very I same rules that Judge Grant cited in~his opinion, that the

Habeas Court inexcusable, excessive delay is unacceptable and due to the tardiness of the Habeas Court he is entitled to mandamus action.

c. Violation Of Article 11.07 ot, '", The.: ."' Te·xas . Code of :CrJmzo;c~w>roc. .

The District Clerk of Dallas. County~ Texas has a ministerial· duty to recieve and file all papers in a criminal proceeding, and perform all other duties imposed on the clerk by.law pursuant to TCCP Art. 2.21, and is responsible under TCCP 11:07 Sec. 3(c) to immediately transmit to the Court of Criminal Appeals a copy of the application for writ of habeas corpus, any answers ft±ed and a certificate reciting the date upon which that finding was made if the~convicting court decides that there are no issues to be resolved. The Distri~t Clerk violated Article 11.07 Section 3(c) of the Texas Code of Criminal Procedure by failing to provide a copy of the application for writ of habeas corpus, any answers filed, and a certificate reciting the date upon which-that finding was made to the Court of Criminal Appeals within the time prescribed by law and within a reasonable time from the date on which the documents were requested to be transmitted. Petitioner has gone well beyond any requirement or.o~Iigations imposed~ upon him by the Texas Code of Criminal Procedure. In contrast to petitioner's efforts, the District Clerk has wholly failed to comply with the Texas Code of Criminal Procedure, Article 11.07 Section 3(c), is acting in bad faith, and has also failed to afford Petitioner the the professional and common courtesy of any written responses to his correspondence and request. Article 11.07 Sectioh 3(c) clearly.states that "[i]f the con~\~ victing court decides that there are no such issues,~the clerk shall immediately transmit {emphasis added] to the Court of Criminal Appeals a copy of the Application, any answers filed, and a certificate reciting the date upon whi.ch that finding was made. Failure of the co~~t t~ act within the allowed 20 days(or in this case 120 days)shall constitute such a finding.'' The Dallas County District Clerk and the Habeas Court Judge of the Criminal District Court Number 4 is in violation of this procedure, ministerial duties, and thus the laws of this state.

D. This Petition Satisfies The requirement For Issuance Of A Writ Of Mandamus Petitioner has satisfied the requirements for issuance by this

Court for a Writ of Mandamus. l.'' The Relator/Petitd:oner has a justifiable interest. Taylor must show that he has a j~stifiable interest in the di~p~te. See'' Ter~a~as v~ Ramire~, 829 s.w. 2d 712, 713 (Tex.l991) He' is incarcerated for Capital M~rder . and a. proper evidentiary ~earing may lead to exonerating him. His liberty constitutes a ]usti'f:iable intere·s•t ... ..J 2. The' Relator/Petitioner Ha:s A Clear Right To Relief .Taylor must show' that he has a clear and legal right to the perfoc~ance of a certain act. Tilton. v. Marshall, 925 s.w. 2d 672, 68.2 (Tex.l996). Taylor has done so .. He is entitled to a ruling pursuant to Article lli.07 of the Te~as Code of Criminal t Procedure. This is a mandatory provision. The habeE~:'S .Court Judge is 1 , · :·, required by this provision to conduct an evidentiary hear~ng and respond.respond to this petition. The _Co~rt has discretion to determine Facts, findings and conclusions o~ the Writ of Habeas Corpus. Hopefully the Court will do so. But until the court makes a ruling, the petitioner cannot proceed. E. Relator Has No Adequate Remedy At Law

The Petitioner has exhausted his remedies and has no other adequate remedy·at law. The act sought to be compelled is ministerial and not discretionary in nature. TCCP Art. 11.07 Section 3(c) requires the District C~erk and the Habeas Co~rt Judge to immediately_.t.ransm:it to the Court of IC"riminal Appeals a copy of the application for writ of habeas corpus, a~y answers filed and a certificate reciting the date upon which· that finding was made, if. the con\(icting court decides that there are no~ issues to be resolved. NO copy of the appli9ati6n for.writ of habeas corpus,

any answers filed, and a certificate reciting the date upon which -n ;,· . .-. that finding was made have be~n transmitte~ to the Court of { Criminal Appeals. Had such documents been transmitted to the

Court of eriminal Appeals by the Disfrict Clerk as required by statue, Petitioner would have recieved hotice from this Honorable Court of Criminal Appeals. When a party who' is subject to an improper Judicial decision has no adequate remedy by appeal, mandamus will issue to correct a clear abuse of discretion or the violation of a duty imposed by law. Walker v. Packer, 827 S.W.2d B33, 839 (tex. 1992). Generally, when there is a disputed issue of m~teria~ fact, mandamus reli~f will not be granted. See Burns v. Kelly, 658 S.W.2d ~3L,. 733 .( Tex .. App.-Fort Worth.l983, orig. proceeding). P~titioner/Relator cannot proceed f~rther without the court's ruling. He cannot appeal any order granting or denial without an order.

. CONCLUSION, Petitioner/Relator understands the difficulty of operating a district court which has many other pending civil and criminal cases. He does not wish to cause the court any inconv~6*ence Yet his motions in conjunction with his Writ of Habeas Corpus pursuant to Art. 11.07, coupled with his original Writ of Habeas Corpus pursuant to Art. 11.07 of the Tex. Code of Crim. Procedure has been pending now forten (10) months. He respectfully reqeest that this Honorable Court of Criminal appeals instruct the district Court to make a decision on his Writ of Habeas Corpus so that he may proceed.

PRAYER

Wherefore, premises considered, Mr. Taylor respectfully pray for this Honorable Court to issue a Writ of.Mandamus to the Habeas Court Judge of the Criminal District Court Number 4, directing a decision on the above mentioned pending motions, and his Writ ~f habeas Corpus .. Mr. Taylor also prays for all other relief required by justice.

Respectfully Submitted,

Eli jahC³.ylo~776071

CERTIFICATE REGARDING SERVICE

I hereby certify tha~ it is my 6eli~f an~ understanding that the Dallas tounty_ Dist~ict. Attorney Susan. Hawke, is a partici-

. pant in the Court's CM/ECF program and that ' separate service of

the foregoing documen~ is notr·required ~eyond the notification of Electronic filing to be forwarded on November 1, 2015 upon the filing of the foregoing document.

Footnotes

[1] of ]/ Judici·al Ad~in?/ reptihted in Tex.Gov. Code Ann. tit.2, subtitle F. App. (Vernon 1998). This is a rule of judicial administration adopted by the Supreme Court of Texas, This rule is set forth in Rule 7(2), which requires a.district or statutory county court judge to rule on a case within three(3) months after the case is taken under advisement." Petitioner/Relator humbly request that this Honorable Court consider this rule and compel the lower Court to grant him an Evidentiary hearing due~to their inordinate delay in these~proceedinqs which is a violation of his due process rights guaranteed by the Fifth and Fourteenth Amendment of the United States of America Constitutiofi. PRAYER Wherefore, premises considered, Petitioner/Relator pray that this Honorable Court grant his Motion For Leave To File Relator's Original Petition For Writ Of Mandamus and compel the l~wer Court to proceed with the hearings in the name of justice. Respectfully Submitted, /s/l~~ EilJa~~

[2] of 3 /s/ t£~~ ,~ ~ Elijah~r~D7l James V. Allred Unit 2101 FM 369 North Iowa Park, Texas 76367-6568 VERIFICATION Pursuant to 28 U.S.C. § 1746, I, Elijah Taylor, do declare, certify, and verify under penalty of perjury that the above information is true and correct. Executed this lst day of November, 2015. Is/ ~~ d; _-- ElijatlSaiahTayl~ TDCJ-ID # 1776071

[3] of 3 TN THE COURT OF CRIMINAL APPEALS CIE>FTTEXAS IN RE ELIJAH ISAIAH TAYLOR SEEKING WRIT OF MANDAMUS DIRECTED TO THE 'PRESIDING' JUDGK-'.OF'~.THE-·'CRTMINAE. DISTRICT COURT NO. 4, DALLAS COUNTY, TEXAS CAUSE NO. F11-40599-K WRIT NO. WR-83, 100-1 RELATOR'S ORIGINAL PETITION FOR WRIT OF MANDAMUS RECEIVED IN COURT OF CRIMINAL APPEALS NOV 09 2015