Opinion
Civil Action No. 3:03-CV-0086-D.
January 7, 2005
ORDER
Petitioner's January 3, 2005 motion to amend his objections to the magistrate judge's findings of fact and conclusions of law is granted, and the clerk is directed to file petitioner's amendment to the annexed objections to the magistrate judge's findings, conclusions, and recommendations. The court has considered these objections in conducting de novo review of the magistrate judge's October 21, 2004 amended findings, conclusions, and recommendation.
SO ORDERED.
AMENDMENT TO THE ANNEXED OBJECTIONS TO THE MAGISTRATE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS
TO THE HONORABLE JUDGE OF SAID COURT:COMES NOW, RONNIE LYNN MESHELL, (hereinafter-Petitioner) with this his AMENDMENT TO THE ANNEXED OBJECTIONS TO THE MAGISTRATES FINDINGS, CONCLUSION AND RECOMMENDATIONS, and in support thereof, Petitioner would show this Honorable Court the following.
I. JURISDICTION
This Honorable Court has jurisdiction over the subject matter pursuant to 28 U.S.C. § 636, §§ 2254.
II. AMENDMENT TO THE ANNEXED OBJECTIONS TO MAGISTRATES FINDINGS, CONCLUSIONS AND RECOMMENDATIONS
Petitioner would aver, pursuant to 28 U.S.C. § 636 (b) and 28 U.S.C. §§ 2254 Petitioner seeks to answer the Magistrate's Recommendations, Findings and erroneous Conclusions which were submitted to this Honorable Court as such on October 21, 2004. In support of this amended answer, Petitioner would show:
1.) PETITIONER OBJECTS TO THE MAGISTRATE'S CONCLUSIONS AND ASSUMPTIONS WHICH THE HONORABLE MAGISTRATE JUDGE HAS TREATED AS A "PRESUMPTION", WHERE THE FACTS AND LAW DO NOT SUPPORT SUCH A "PRESUMPTION" AND THUS AMOUNTS TO A DEFERENCE TO THE STATE'S UNREASONABLE APPLICATION OF CLEARLY ESTABLISHED FEDERAL LAW, IN VIOLATION OF 28 U.S.C. § 2254 (d)(1).
Facts And Authorities:
Petitioner would aver, in the Magistrate Judge's amended Findings, Conclusion and Recommendations (hereinafter-AFCR) on page 1 the Magistrate Judge opens his "factual history" which a fact error leads to an improper assumption and infects logical reasoning throughout the entire fact history. This error occurs as a direct result of two errors:
(1) The Magistrate Judge has not consulted nor read the reporter's record, and is relying instead on the State's recitation of the portions of the record which have been paraphrased to the State's advantage, and;
(2) No fact hearing has been held, nor has trial counsel nor appellate counsel been required to submit affidavit's, nor has other factfinding proceedings been conducted by the State or Federal Tribunals to determine what the facts are.
On page 1 of the "AFCR", the Magistrate Judge erroneously ties the ALLEN and BUSBY burglary's together. SEE ALSO PAGE 2 and 3.
Federal Law requires the Federal Court to substantially review all lower Court proceedings Statement Of Facts, trial records, trial transcripts, and testimony in the case, before it purports to "defer" to the State Court Findings. WILLIAMS Vs. TAYLOR, 120 S.CT. 1495, 1511 (2000) The Federal Tribunal may never defer to unreasonable State Court applications of clearly established Federal Law ( 28 U.S.C. § 2254 (d)(1)) nor may the Federal Habeas Tribunal defer to a clearly unreasonable determination of facts in light of evidence presented at the State Court proceedings. ( 28 U.S.C. § 2254(d)(2) see eg. WIGGINS Vs. SMITH, 123 S.CT. 2527, 2539-40 (2003)
The Magistrate Judge's "presumption" of correctness, without the Court personally conducting an in-depth review amounts to a "post-hoc assumption of correctness and rationalization of the State Court proceedings designed to justify the conviction" rather than argue the truth seeking function of Habeas responsibility. see: eg. WIGGINS, Id. 123 S.CT. at 2538, 2539, 2540. A decision by State Courts may be unreasonable even if the conclusion is not immediately apparent. WIGGINS, Id.; WILLIAMS Vs. TAYLOR, 120 S.CT. 1505; MILLER-EL Vs. COCKRELL, 123 S.CT. 1029, 1039-1040 (2003)
Had the Magistrate Judge reviewed the entire record as demanded (by clearly established Federal law which he purports to rely on in part) by WIGGINS, WILLIAMS, and MILLER-EL, infra, and not depended so heavily on the pleadings of the State. The Magistrate Judge would have clearly determined that not one word of testimony exists on any record which will support the ALLEN conviction. No fingerprints, no forensic evidence, no D.N.A. evidence, no surveillance, no confession, simply no evidence exists to satisfy any element of the convicted offense of Burglary as defined in 30.02 (A)(1) or (2) Texas Penal Code, or as defined in the definitions in 30.01 or 30.02 (A)(3)(b) of the Texas Penal Code. SEE: SONNIER Vs. STATE, 849 S.W.2d. 828 (Tx.App. Houston (14th Dist] 1992); McELYEA Vs. STATE, 599 S.W.2d. 828, 830 (Tx.Crim.App. 1980)
Possession and/or sale of stolen property is not sufficient evidence to prove a greater offense. SEE: SONNIER, Supra, andintent to possess the stolen goods cannot be inferred by possession/sale alone. SONNIER, Id. 849 S.W.2d. 830, McELYEA, Id. at 803; SMITH Vs. STATE, 518 S.W.2d. 823, 825 (Tx.Crim.App. 1985) The State must prove beyond a reasonable doubt that the person possessing or pawning the goods knows they were stolen. SONNIER, Id. at 830, SMITH, Id. at 825.
A presumption is rebuttable. STRICKLAND Vs. WASHINGTON, 104 S.CT. 2052, 2069 (184); WILLIAMS, 120 S.CT. 1511, 1512; U.S. Vs. STRIKLIN, 290 F.3d. 748, 751-53 (5th Cir. 2002) Petitioner has conclusively demonstrated that no evidence was heard by jurors, and no evidence exists which can support any elements of the offense of BURGLARY in the ALLEN case — only sale of the stolen property, and no evidence supports even an inference Petitioner knew the property was stolen when he pawned it. SONNIER Vs. STATE, 849 S.W.2d. 830.
The Magistrate Judge has made a leap — from assumption to presumption, which muddles all conclusion which rest thereon. SEE, eg. WIGGINS Vs. SMITH, 123 S.CT. 2538.
Even assuming (ARGUENDO ONLY) that the Magistrate Judge correctly concludes some fact issue (such as procedural bar to the insufficient evidence) this error by the Magistrate Judge prevents rational, logical or legal consideration of other constitutional issues which are properly before this Honorable Court because the Magistrate Judge has chosen to make assumptions that Respondent's pleadings are more factual than statute, case law or the actual trial records in this case. SEE: WIGGINS, Id. at 2038, 2039; MILLER-EL, 123 S.CT. 1039, 1040; and WILLIAMS Vs. TAYLOR, 120 S.CT. 1499-1512.
Pursuant to unreasonable application of Federal Law and improper application of the facts in the State Court proceeding, Petitioner objects to the Magistrate Judge's unwarranted assumptions based on erroneous State pleadings rather than comprehensive review of the entire record, as was the case in WILLIAMS, Id., WIGGINS, Supra. and MILLER-EL, Supra. Petitioner is entitled to a hearing in this cause.
2.) THE MAGISTRATE JUDGE ERRONEOUS CONCLUSION THAT PETITIONER RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL REST UPON ASSUMPTIONS BASED ON SUBJECTIVE FEELING OR BELIEF RATHER THAN ANY PRESUMPTION ARISING FROM THE RECORD, OF FROM REVIEW OF GERMANE LAW PERTINENT TO THE FACTS OF THE CASE.
Facts And Authorities:
The Magistrate Judge erred when he concluded on "AFCR" page(s) 11, 12, and 13 the evidence established guilt in the ALLEN case thus relieving counsel of a duty to act as an advocate in behalf of Petitioner. The Magistrate Judge came by this conclusion obliquely, by making several ad-hoc and unreasonable assumptions based wholly on speculation rather than actual review of trial evidence and testimony. This error was referred to by the State pleadings as deference, which is another unreasonable application of clearly established federal law. SEE: eg. WIGGINS Vs. SMITH, 123 S.CT. 2538; 28 U.S.C. § 2254 (d)(1) The facts in the record, WIGGINS, Id. at 2539, § 2254 (d)(2).
A "presumption" of correctness is not an "assumption" and cannot rely on an assumption". WIGGINS, Id. at 2538. When a State Court erroneously and automatically accords some presumption of correctness to a lower State Tribunals events, with review of the entire record, in regards to cases where ineffective assistance of counsel is alleged. Said Tribunal attempts to make a post-hoc rationalization which justifies counsel's ineffective conduct in order to finalize a conviction. WIGGINS, 123 S.CT. 2538; MILLER-EL Vs. COCKRELL, 123 S.CT. 1038-1040.
The Magistrate Judge attempts to place his stamp of imprimatur on the State Courts ruling by blindly "deferring" to it, even though it — and thus the Magistrate Judge's own ruling are clearly flawed which this violates 28 U.S.C. § 2254(d)(1), (d)(2) and MILLER-EL, 123 S.CT. 1029; WILLIAMS Vs. TAYLOR, 120 S.CT. 1495; and WIGGINS Vs. SMITH, 123 S.CT. 2527, and explicitly violates the dicta and tenet of STRICKLAND Vs. WASHINGTON, 104 S.CT. 2052.
This objection rests on multiple parts:
A.) In the "AFCR" page 11, the Magistrate Judge, without referring to the trial record, erroneously states the prejudice claim of STRICKLAND, has not been met. It is the Magistrate Judge's unsupported assumption upon which he rests this conclusion. SEE: WIGGINS, 123 S.CT. 2539. Because no evidence in the record of this cause support the ALLEN conviction, and the record supports this claim. The State's — and the Magistrate Judge's conclusion is an unreasonable determination of facts, per 28 U.S.C. § 2254(d)(2). A different outcome would have occurred had counsel made the proper objections to the ALLEN charge, requested a mistrial, and made a request for separate instructions and an instructed verdict of acquittal in theALLEN case. SEE: U.S. Vs. OLANO, 113 S.CT. 1770, 1777 (1993) (Counsel has a duty to object and preserve trial errors unless a client waives these objections) As in NERO Vs. BLACKBURN, 597 F.2d. 991 (5th Cir. 1979) and LYONS Vs. McCOTTER, 770 F.2d. 529 (5th Cir. 1985) had counsel requested instruction for a directed verdict of acquittal, or mistrial, because no evidence was adduced at trial to support all the elements of Burglary (30.02 Penal Code) in the ALLEN case. The Court was bound to so instruct an acquittal, or declare a mistrial on the ALLEN case.
Counsel's failure to object, preserve and so request an instructed verdict of acquittal or mistrial was, by objective standards ( NERO, 597 F.2d. 991 and LYONS, 770 F.2d. 529; STRICKLAND, 104 S.CT. 2064; OLANO, 507 U.S. 733) ineffective assistance.
Prejudice is clear. . . . Petitioner received a Fifty (50) year sentence for a conviction that counsel's objection would have prevented. LYONS, Supra, 770 F.2d. 534; NERO, 597 F.2d. 996-98; U.S. Vs. STRICKLIN, 290 F.3d. 748, 751 (5th Cir. 2002)
Petitioner would have and has demonstrated both prongs of the standard as articulated in STRICKALND and is entitled to relief.
B.) The Magistrate Judge (and the State) claimed the proper standard for review pertaining to this cause was STRICKLAND Vs. WASHINGTON, 104 S.CT. 2052 (1984) However, IN APPLICATION the standard was misused by the Magistrate Judge and the State, and a much higher bar for relief was established than STRICKLAND requires. SEE: STRICKLAND, 104 S.CT. 2068, where "a defendant need not show that counsel's conduct more likely than not altered the outcome of the case. An ineffective assistance of counsel claim asserts absence of one of the assurances of reliable results . . ." STRICKLAND, at 104 S.CT. 2068. So, finality concerns and standards of prejudice should be somewhat lower." Id. at 2068. Errors of counsel cannot always be shown by a preponderance of the evidence to have determined the outcome. Id. at 2068. Accordingly, the appropriate test is found in U.S. Vs. AGURS, 96 S.CT. 2397, 2401-02 (1976) and U.S. Vs. VALENZUELA-BERNAL, 102 S.CT. 3449-50 (1982); SEE: STRICKLAND, Id. at 2068. The test is "a reasonable probability that but for counsel's unprofessional errors the result of the proceeding would have been different. Id. at 2068. "A reasonable probability is a probability sufficient to undermine the confidence in the outcome. Id. at 2068.
In STRICKLAND, there is no mention that a defendant must prove by a preponderance that counsel's error would have created a different verdict — only that when viewed in light of all the evidence the possibility of a different verdict (without counsel's errors) existed. SEE: STRICKLAND, 104 S.CT. 2069.
Thus, the Court itself is required to review the "totality" of evidence when a claim of ineffective assistance is brought before the Court. This is not discretionary, but is dicta. SEE: eg. STRICKLAND, 104 S.CT. 2069, WIGGINS Vs. SMITH, 123 S.CT. 2527-2540; SEE ALSO: WILLIAMS Vs. TAYLOR, 120 S.CT. 1495, 1511; MILLER-EL Vs. COCKRELL, 123 S.CT. 1029.
WIGGINS, MILLER-EL, WILLIAMS and STRICKLAND all make clear that deference to correct State Court assessments of facts and law does not preclude Federal Relief when the State Courts have acted erroneously, or cited correct standards improperly and arbitrarily. WIGGINS, 123 S.CT. 2534, MILLER-EL, at 123 S.CT. 1040; WILLIAMS, 120 S.CT. 1505, and STRICKLAND, 104 S.CT. 2069.
C.) The Magistrate Judge misuse of subjective "assumption" in place of objective "presumption" blinded him to the fact that the investigation would have uncovered abuse of police power to obtain (in the Burglary case) a confession (done to protect the girl and nephew) which is underscored by police lies and failure to carry out promises made to extract the statement relied upon to convict.
WILLIAMS Vs. TAYLOR, 120 S.CT. 1495; WIGGINS Vs. SMITH, 123 S.CT. 2527 and KIMMELMAN Vs. MORRISON, 106 S.CT. 2574 (1986) all expound on the Dicta that counsel's duty to investigate is not a negotiable duty. When counsel does not investigate he must explain why not, and his reasoning must be supported by reasonable professional judgement. This Court cannot second guess this issue unless counsel has been given opportunity to respond. (The Magistrate Judge also failed to consider or note in his erroneous Findings that the Dallas District Attorney — in his recommended findings (adopted by the trial court) stated that ineffective assistance of counsel was likely and counsel should be required to file affidavits or testimony. It was never ordered nor addressed by the Texas Court Of Criminal Appeals) STRICKLAND, 104 S.CT. 2068-2069; WIGGINS, 123 S.CT. 2535; WILLIAMS, 120 S.CT. 1502; KIMMELMAN, 106 S.CT. 2589.
When failure to investigate is alleged the Court must require counsel to explain why or must assume prejudice. KIMMELMAN, 106 S.CT. 2589 (Court's relied on State's hindsight assumptions of strategy) WIGGINS, 123 S.CT. 2538 (Court's relied on post-hoc rationalization to support counsel's conduct rather than accurate description of events at trial); STRICKLAND, 104 S.CT. 2066 (Inquiry into counsels conversations with defendant is critical to assessment of counsel's investigative decisions). The Magistrate Judge abused his discretion when he made his Findings, Conclusion, and Recommendations in a "factual vacuum", without contacting counsel — where the State had not done so. This violates 28 U.S.C. § 2254 (d)(1), (d)(2). WIGGINS, 123 S.CT. 2527; MILLER-EL, 123 S.CT. 1029; KIMMELMAN, 106 S.CT. 2575; WILLIAMS, 120 S.CT. 1495; STRICKLAND, 104 S.CT. 2052.
D.) The Magistrate Judge further erred by claiming counsel conducted a thorough challenge to an invalid confession, and despite no specific ruling on limitation of cross examination. While MIRANDA Vs. ARIZONA, 86 S.CT. 1602 (1966) is alive and well, it is imperative the Magistrate Judge review the testimony of the Police Office who violated MIRANDA to obtain the confession and actually admits to such violation at trial on the merits. This issue is cause specific to Burley only.
Petitioner should not need to file an another 60 pages to explain what is clear in the record. The Police Officer made false promises to obtain a confession, the Police Officer admits to it, under oath.
PENNSYLVANIA Vs. RITCHIE, 107 S.CT. 989 (1987) and DELAWARE Vs. FENSTERES, 106 S.CT. 294 (1986); and then again this year in CRAWFORD Vs. WASHINGTON, 124 S.CT. 1354 (2004) the need for confrontation is explained, and the limits on a Trial Judge's discretion to curtail such confrontation as is necessary to reliably challenge a hostile or prosecution witness is set forth. According to the Magistrate Judge's ruling, Petitioner was entitled to no constutitional trial protections, nor to counsel's knowledge and willingness to enforce his constitutional rights. Petitioner referred to the Trial record and cited Supreme Court case law which objectively requires that counsel who does not investigate and who fails to object is not performing to a 6th Amendment Standard. U.S. Vs. OLANO, 113 S.CT. 1770; WIGGINS ; MILLER-EL ; KIMMELMAN ; WILLIAMS ; STRICKLAND. The facts of the trial record in this cause clearly depicts Petitioner is entitled to relief, on his claims of ineffective assistance of counsel.
3.) THE MAGISTRATE JUDGE RELIES ON TWO EX-POST-FACTO LAWS TO DETERMINE THAT PETITIONER IS NOT ENTITLED TO RELIEF, IN VIOLATION OF ARTICLE I SEC. 9 CL. 3 OF THE UNITED STATES CONSTITUTION.
Facts And Authorities: WEAVER Vs. GRAHAM, 101 S.CT. 960 (1981) is the controlling authority on ex-post-facto violations. "An ex-post-facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed. WEAVER, at 964. EX PARTE GRIGSBY, 137 S.W.3d. 673 (TX.CRIM.APP. 2004) is a 2004 case. Likewise, FOX Vs. JOHNSON, WL432247 ia a 2001 unpublished and unavailable case of no precedental value. Both decisions were made years after Petitioner's 1997 conviction, and both ignore the "meat" of the claim, to wit: there is no evidence which supports any element of the offense for Burglary under Texas penal Code 30.02. BURKS Vs. U.S., 98 S.CT. 2141 (Should not have been presented)
This Court is required to make a thorough review under MURRAY Vs. CARRIER, 106 S.CT. 2639 (1986) and SCLUP Vs. DELO, 115 S.CT. 851 according to DRETKE Vs. HALEY, 124 S.CT. 1847, 1852 (2004) because the central concern of a Writ Of Habeas Corpus is not finality, but of "fundamental fairness". HALEY, 124 S.CT. 1851; BURKS, at 2148.
In DRETKE Vs. HALEY, the Court held, "A Federal Court faced with allegations of actual innocence must first address all non defaulted claims for possible relief and any grounds with might excuse a default. Id. at 1852. "Most victims of a fundamental miscarriage of justice will meet the "cause of prejudice" standard." HALEY, at 1852; ENGLE Vs. ISSAC, 102 S.CT. 1558 (82) When the ineffective assistance of counsel claims are raised as cause or independently, Court must address those claims as integral to the underlying defaulted claim. HALEY, at 1852.
Petitioner raised claims that both, trial and appellate counsel failed to raise the "no evidence claims" and failed to do so pursuant to DRETKE Vs. HALEY, 124 S.CT. 1847, 1852 (2004) Petitioner has established adequate cause and prejudice and other grounds to entitle him to relief, pursuant to BURKS, 98 S.CT. 2141.
4.) THE MAGISTRATE JUDGE ASSUMPTIONS OF "CORRECTNESS" DEFERRED TO STATE COURT POST-HOC RATIONALIZATION OF APPELLATE COUNSEL'S EFFORTS — EVEN THOUGH THE STATE COURT PROCEEDING a.) IDENTIFIED THE CORRECT FEDERAL LAW AND THE MISAPPLIED IT, AND b.) MADE AN UNREASONABLE DETERMINATION OF THE FACTS WITHOUT; (1) CONTACTING APPELLATE COUNSEL; OR (2) HOLDING A HEARING; OR (3) REVIEWING THE RECORD.
Facts And Authorities:
Competent counsel must "look hard" for potential issues even in a potentially unpromising case. SMITH Vs. ROBBINS, 120 S.CT. 746, 769 (2000) citing PENSON Vs. OHIO, 109 S.CT. 346 (1989) "CAUSE" for not exhausting a State's remedy includes Appellate Counsel's failure to raise an issue on appeal if both prongs of STRICKLAND are met. EDWARDS Vs. CARPENTER, 120 S.CT. 1587, 1594 (2000)
Petitioner has adequately pled that he was deprived of his Sixth Amendment rights to effective assistance of Appellate Counsel when counsel did not raise the issue of insufficient orno evidence on direct appeal. Namely any reading of the trial reporters record will conclusively show there is no evidence connecting Petitioner to the ALLEN house — and all the essential elements of Texas Penal Code (Burglary) are absent. As an undisputable fact, counsel — who failed to even raise the issue at trial — Appellate Counsel who utterly failed to raise the issue were defective — and Petitioner's Fifty (50) year sentence for the alleged offense for which circumstantial evidence does not even support, is proof prejudge. STRICKLAND, 104 S.CT. 2068. Had either counsel raised the issue, acquittal in the ALLEN case is required. LYONS Vs. McCOTTER, 770 F.2d. 529; NERO Vs. BLACKBURN, 597 F.2d. 991; CHILDRESS Vs. JOHNSON, 103 F.3d. 1221 (5th Cir. 1997). This is not a probability, or possibility, but a certainty. In HARRIS Vs. REED, 109 S.CT. 1036, 1043-44 (1989) the Court held that an adequate and independent State Ground (procedural) does not prevent the Supreme Court or Federal Court's from reaching the Federal Claim, and the cause and prejudice standard applies. (SEE: SONNIER Vs. STATE, 849 S.W.2d. 828 (Houston [14th Dist.] 1993) where the Court held that proof of possession of or attempting to pawn items stolen will not prove that the possessor stole the items. Petitioner pawned some ALLEN merchandise — but did not commit the burglary and no fact contradicts this. Possession or sale of stolen goods is a class "B" misdemeanor, punishable by 180 days in jail, not 50 years.) if the Court does not "clearly and expressly" rely on the State procedural ground complained of, the State waives it's procedural bar. HARRIS, at 1043. Ambiguities in the State ruling must be resolved in favor of the Petitioner. Id. at 1042; MICHIGAN Vs. LONG, 103 S.CT. 3469, 3477.
Moreover, if the "cause" for procedural default is "ineffective assistance of counsel" EVITTS Vs. LUCEY, 105 S.CT. 830; EDWARDS Vs. CARPENTER, 120 S.CT. 1587, 1594; ANDERS Vs. CALIFORNIA, 87 S.CT. 1396; COLEMAN Vs. THOMPSON, 111 S.CT. 2546, requires that the State has benefited from a due process violation and must bear the costs to right the wrong.
On the horns of the dilemma, this Court may exercise either of several options: (A) Since no explicit and plain language expressly and explicitly relies on default as per Texas grounds for "adequate and independent" reasons for denial, the ambiguity may go to Petitioner — per LONG, 103 S.CT. 3477.
(B) HALEY, could prevail because: a miscarriage of justice" would result ( 124 S.CT. 1852) and "other sufficient grounds exist" to resolve the issue, or;
(C) The Court could abate the proceedings pending and the Court could order a "meaningful appeal of right", per EVITTS Vs. LUCEY, 105 S.CT. 830, 835; PENSON Vs. OHIO, 109 S.CT. 349; EX PARTE DIETZMAN, 790 S.W.2d. 305 (TX.CRIM.APP. 1990)
In EX PARTE TORRES, 943 S.W.2d. 469 (TX.CRIM.APP. 1997) the Court held that granting of an out of time appeal dissolves any pendant bar to subsequent Habeas claims. When Appellate Counsel fails to develop or raise relevant grounds for relief on appeal, he provides ineffective assistance of counsel on appeal. EX PARTE DIETZMAN, 790 S.W.2d. 305 (TX.CRIM.APP. 1990); citing EVITTS Vs. LUCEY, 105 S.CT. 830 (1985) In DIETZMAN, at 306, the Court went against the Trial Court findings because, as here, the conclusions were not supported by the record. As shown herein, Petitioner is entitled to relief.
III. SUMMARY
The Magistrate Judge committed grave error by blindly deferring to improper State Court conclusions which were (1) Misapplications of correct Federal law, and were unreasonable [2254(d)(1)] and were an unreasonable application of law to incorrect facts [2254(d)(2)], thereby entitling Petitioner to Federal Habeas relief. Neither the State, nor the Magistrate Judge, performed the necessary judicial functions to reach their conclusions . . . no hearings . . . . no contact with Petitioner's counsel . . . nor a requested response from counsel . . . no independent review of the trial records. These failures violate the dicta of STRICKLAND, 104 S.CT. 2066; WILLIAMS Vs. TAYLOR, 120 S.CT. 1504-05 (State may not require Federal Court's to defer to State Court findings/interpretations of Federal Law in STRICKLAND questions) MILLER-EL, 123 S.CT. 1039-1040 (Federal Courts must review State proceedings to determine federal questions not properly addressed); WIGGINS, 123 S.CT. 2525-2536 (STRICKLAND requires a context dependent review when failure to investigate is alleged . . . rationalization or post-hoc justification of counsel errors is not deference to "presumption" but is reliance on subjective "assumption", and unreasonable.
The Magistrate further erred by claiming the record supported the ALLEN conviction when the record is devoid of any evidence supporting this conviction . . . simply no evidence exists. This err led the Magistrate Judge to assume counsel had no duties to protect Petitioner from this egregious conviction or a 50 year sentence, either at trial or on appeal. SEE: BURKS Vs. U.S., 98 S.CT. 2141 (1978) (NO EVIDENCE)
The Magistrate Judge further erred in concluding police can lie and deceive to obtain a confession to use to convict — and Petitioner is not protected by MIRANDA, 86 S.CT. 1602, has no Sixth Amendment rights to confrontation, per DELAWARE Vs. FENSTERER, 106 S.CT. 294 or CRAWFORD Vs. WASHINGTON, 124 S.CT. 1354, and that counsel had no duty to object, preserve issues for appellate review or request instructions to which Petitioner was entitled according to the record. SEE: U.S. Vs. OLNAO, 113 S.CT. 1770; STRICKLAND, Supra.; KIMMELMAN, Supra.; LYONS Vs. McCOTTER, 770 F.2d. 529.
Finally, the Magistrate Judge erred in concluding an unpublished lower court decision overrides the dicta set forth in CALDWELL Vs. MISSISSIPPI, 105 S.CT. 2633, 2638 (1986) Where "the mere existence of a basis for State procedural bar does not deprive Federal Courts of jurisdiction. Id. at 2638. State Courts must explicitly rely on that bar as its basis for disposition". Id. at 2638. Only after the Magistrate had ruled did the State attempt to circumvent an avenue of relief by relying on this mechanism. Had Petitioner attempted such a last second argument, said argument would have been declared "moot" considering the untimelyness. The mere fact the Magistrate Judge reversed his position indicates the strength of Petitioner's position, and the unlevel nature of the playing field in order to maintain the illegal conviction now at bar. The Magistrate Judge's changing of positions demonstrate that jurists of reason find Petitioner's complain compelling and debatable. 28 U.S.C. 2254.
IV. PRAYER
WHEREFORE, ALL PREMISES CONSIDERED, Petitioner prays this Honorable Court will grant the instant Federal Habeas Corpus Petition, and overrule the Magistrate Judge, as well as order a hearing on the merits.
Petitioner would pray, in the alternative, relief in the "no evidence" issue, this Honorable Court may consider:
(1) Consider the claim as a SCHULP Vs. DELO, 115 S.CT. 851, 861 claim;
(2) Review the case under dicta of DRETKE Vs. HALEY, 124 S.CT. 1847, 1852; or
(3) Abate the foregoing petition, per EVITTS Vs. LUCEY, 105 S.CT. 830 and remand the foregoing conviction to the State Trial Court for a new appeal. (EX PARTE DIETZMAN, 790 S.W.2d. 305,McCOY Vs. COURT OF APPEALS OF WISCONSIN, 108 S.CT. 1895) to allow procedurally correct disposition of a defaulted insufficient evidence/miscarriage of justice claim, caused by counsel's default — not Petitioner's waiver;
(4) Provide relief on the STRICKLAND claims (HALEY 124 S.CT. 1852, 1853) thereby mooting the evidence and other claims.
Petitioner prays for relief such as this Court may determine facts and what this Honorable Court may deem proper pursuant to both State and Federal Law.
Respectfully Submitted
Ronnie Lynn Meshell #863538 TDCJ-CID. — Wynne Unit Huntsville, Texas 77349 Petitioner, In Pro Se.
VERIFICATION
I, RONNIE LYNN MESHELL, TDCJ-CID.#863538, declare under the penalty of perjury the statements made in the foregoing are true and correct.1.) I AM THE PETITIONER IN THIS PETITION.
2.) THE STATEMENTS MADE IN THE FORGOING ARE TRUE AND CORRECT.
RONNIE LYNN MESHELL #863538 Petitioner, In Pro Se.