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§§ l 1733"01 02
HE@E§ W§DW

I_N m JuDIcIAL DISTRIC'I.‘ COURT COURT OFGHtMlNAL APPEALS
203 oF nALLAs couNTY, TExAs

MAR 03 2015
mom L. woons, ) '
Petitioner, ) AMACOSY@, C'Mk
VSa ) WRIT NG. WBQ~'A[W$s-P(A)
STATE OF TEXAS', )
'R'espondent~. ' ’ `.; . , . . ‘ )

 

PETITION'§R’S R.EPLY T0_ STATE'S RESPONSE FOR
WRIT OF HABEAB CORPUS

Comes now,, petitioner Rodney L. Wo_ods (Pro-se in this matt'er) and respectfully
submits this reply to the State's Responss of petitioner's state rights here

in Texas, and his United States Constitutionsl'Rights' being violated;
JURISDICTION

Petitioner lWo.c\d's,, request this Court' to Vacate his Conviction and or
_Sentence in the above captioned case (Criminal) pursuant to the Texas Rules of
Procedure For Post-Gonviction Remedies. Petitioner asserts the conviction and
sentence in this cause was in violation of the Fifth, Sixth and Eourteenth ‘

Amendments to the United States Constitution.
STANDARD OF REVIEW

The standard of review for a pro-se complaint is to be considered liberally.
l'f this Court can reasonably read this pleading to state a valid claim, this
Court should grant this action despite any failure to cite proper legal
authority, confusion of legal theories or poor syntax. Haines v. Kerner, 5104

U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed'. 2d 652 (1972).
BACKGRGUND

The True Bill Of lndictment filed on November 10, 1989, under Cause No. F-
89A4738~QP - alleges on or_ about November 3 , 1989, petitioner woods, did
'unlawfullv, knowingly and intentionally deliver a simulated ` controlled

substance, to-wit: a white powdery substance, to D.L. GLAGGET, hereinafter

called the complainant , and said defendant did, expressly ;and in a manner that
would lead a reasonable person to believe that the substance is a controlled
substance, represent the said simulated controlled substance to be controlled
substance, to-wit: COCAINE. . .

Petitioner Woods originally pleaded not guilty to said offense under Cause
No. F~89A4'738-QP.

However, upon the advice of counsel, on April 27, 1990, petitioner pled

guilty to unlawful PUSSESSION of'a»simulated substance, pursuant to WAIVER OF" l

JURY/FELONY PLEA OF GUILTY/NOLO CONTENDERE/INDICTMENT/INFORMA'I"IGN. (See EXHIBIT :;- d

A, attached to and enclosed in the original post-conviction motion and
memorandum of law in support).~ _ 4

Also, on January 31, 1990, a True Bill Of lndictment was filed under Cause
No. F-9029380-Ul’ - allegigg on or about November 24, 1989, petitioner Woods,
in the County of Dallae and State of `Texa_s, did unlawfully, knowingly and
intentionally possess with intent to deliver, a controlled substance, namely:
Cocaine, in an amount by aggregate weight including any_adulterants or dilutants
of less than 28 grams..-..

Petitioner originally pleaded `not guilty ¢:`ol said offense under .Cause No.
F-9029380-UP¢

Following the advice of counsel,` petitioner Woods proceeded to trial where

in Apr:l.l 1990, a jury found petitioner guilty of said offense contained in die "

State' s indictment¢

Defense counsel for petitioner failed to pursue a direct appeal.
M

Cause No. W89-A4738-P(A):
'l'he state'l response contends petitioner may not avail himself of his
constitutional right to challenge a_ f\mdamental miscarriage of justice, because

is not currently confined in the state of Texas.

Next, the state assert al doctrine of laches should bar this court from

reaching the merits of petitioner Woods claim[s].

_It is well settled that a petitioner must exhaust all available state court
habeas corpus remedies before requesting a federal court to consider the merits
of his claims. 28 U;S¢C. §2254(b) and (c). The exhaustion requirement is
designed to "protect the state court's role in the enforcement of federal law
and prevent the disruption of state judicial proceedings." Rose v. Lund , 455
U.S. 509, 518, 71 L. Ed. 2d 379, S. Ct. 1198 (1982). In order to exhaust, a
petitioner must "fairly present" all of his claims to the highest state court
for review. Shute v. State of Texas, 117 F.3d 233, 237 (Sth Cir. 1997)§ Qg§§£§
‘v. Collins, 985 F.Zd 789, 795 (Sth Cir. 1993); Richardson v. Procunier, 762 F#Zd
429, 430-31 (sch cir. 1985). `

A habeas corpus petitioner may satify this requirement by presenting both
the factual-and legal substance of his claims to the sentencing court in an
application for a writ of habeas corpus pursuant to the article 11.072,`Texas>
Code of Criminal Procedure. Alternatively he may file an application for habeas
jcorpus relief in the convicting court pursuant'to article V §8 of the Texas
Constitution. See Rodriquez v. Court of Appeals Eight Supreme Judicial District,`
769 S.W.an 554, 557 (Tex. Crim. App; 1989) (en banc) (holding that article V
58 of the Texas Constitution, combined with article 11.05 of the Texas Code of'
Criminal Procedure, confers general jurisdiction in the district court to issue
writs of habeas corpus, even in cases where the district court has no other
jurisdiction over the matter in controversy). In the event the district court
denies the habeas petitioner has a right to appeal to the` Texas appellate l
courts and to petition the Texas Gourt of Griminal Appeals for discretionary
review.

The state urges this court to hold only a federal court can issue a writ

of habeas corpus, because petitioner is in custody of the United States

_3,

government ." `

Petitioner woods- request this court to determine whether the limited States
Supreme Court is correct is addressing "Substance over Form" and "Fairness over
Finality" especially where it pertains to la violation that is constitutional
in -magnitude." Reed v`.~' Farley,'-' 512 U.»S¢ 339 (1994) recogniaed,' a habeas review

is available to check violations of federal laws when the error "'~qu‘alifi'es as

la fundamental defect which inherently results in a complete miscarriage of

justice;"' (citing Hill.v.- United States,~ 368 U.~S." 424,~` 428 (1962),.~'
'l'he Sixth Amendment guarantees the right to competent counsel not just at l

trial,~ but during all "critical stages of the prosecutiona"' United"r States. v.'

_wnde, 338 u:s.- 21`s,: 237,- 18 L.' Ea.- 2d 1149,~' 87 s.~~ cc.» 1926 (1'967).-»

'\"A critical stage is one where potential substantial prejudice to the
defendant’s right adhere in' the .-.*.~‘ confrontation [of the accused by the -
prosecutionj and where counsel"s abilitiescan help avoid prejudice.~" ' Coleman
v_." Alabama, 399 U:Sa .1,- 9_,- 26-L: Ed¢ 2d 387,~ 90 S. Ct.~’ 1999 (1970)2`

The U.S. Supreme Court's_ decisions in Lafler v. Cooper,- 132 S. Ct. 1376,
1387, 182 L. Ed. 2d 398 (2012)'and D'Iissouri'v.,l Fge, 132- S. Ct. 1399, 1406, 1_§_§_ ~

_ L. Ed.- 2d 379 (2012) emphasized ineffective assistance of lzcounsel claims .runs

throughout the plea bargaining process.

Defense counsel - Kenneth weatherspoon, (State Bar No. 21004100) represented
petitioner Woods in Cause *No. F-89A4738-QP - Unlawful Delivery Qf A Simulated
Controlled_ Substance. Had counsel - Weatherspoon thoroughly investigated the
state's evidence, states's statute, the plea agreement and interviewed the
state's witnesses, then a different result would have came ebout.- A simulated n
controlled substance is 292 a controlled substance, it is simply a substance
that is wrongly represented to be a controlled substance'. As the Texas statute
illustrate, the Term "counterfeit substance" has _a defended, well-established

meaning distinct from the definition of a "s_inmlated" or "limitation" controlled ‘.~__.,

..1,..

substance offense. The_refore, petitioner Woods respectfully request this court
to apply this definition, rather than a definition based on the plain meaning
of- the term "counterfeit_." See Mag_nano Co. v. Hamilton? 292 U.S. 40,- 46-4_7,§ Z_§
L. Ea. 1109, 54 s;*c¢. 599 (1934). v l

'l'exas provides a separate offense for the possession or delivery of a
evaluated controlled substance umFoRM commoer sunsrmcss AcT §'405 (1994);
TEXAS HEALTH & SAFETY CDDE §48'2.002. Under Texas law, a -"simlated' controlled
Asubst£ax'u:e" is defined as " a substance that is purported to be a controlled
sub_____s__________tance, but is chemically different from the controlled substance it is
purported to be." TEXAS HEALTH & SAFETY CODE §482. 001(4). Thus, _a sinnllated
controlled substance is NDT a controlled substance.

Under Criminal Law 12 §46.4 - Counsel duties in representing dan criminal
defendant, counsel owes the`client a duty of loyalty, a duty to avoid conflicts
of interest , a duty to consult with the defendant on important decisions, a duty
to keep defendant informed of important developments in the course of the
prosecution and a duty to bring to bear such skill and knowledge as well as
render the trial- a reliable adversarial testing process. The objective standard
in this case, is whether defense counsel - Weather'spoon made such error[sj that
the attorney was g__o_t_: functioning as counsel guaranteed by the Sixth Amendment.
Laf1er'v.”'cooeer, 132 s. cc. 1376, 182 L. Ed. 24 398 (2012) ana mssouri v.
'_F_r.y_e, 132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012). y

The Sixth Amendment right-to-effective-assistance-of-counsel guarantee
recognized "the obvious truth that the average defendant does not have the
professional legal skill to protect himself when brought before a tribunal with
power to take‘his life or 'liberty." Johnson v. 'Zerbst,_ 304 U.S. 458, 462-63,
usa s. cc. 1019, 82 L.‘ ra`. 2d 1461 (1938). "of an the rigth that an accused
person has, the right to ben represented by competent counsel is by far the most

pervasive, for it affects his ability to assert any other rights." Cronic, 466

U.S. at 654. Thus, a defendant requires an attorney's guiding hand through

 

   

:§_.every stage of the proceedings against him;

they are based on counsel's professional judgment.'-' Strickland v. Washington, -‘

" " i"_-`466 ~'»U";S`. 668,`, 680 (1984). flowever, if a purportedly tactical decision is not _.
k §.`:.,‘.’.";
'_'=`preceded by a reasonable investigation, then it is _ng_t sufficiently informed

 

  
   
 
 
  
 

" ' '.'i~,sears, ;130' s. cc. se 3265.

The statutory definition of delivery of a (simulate`d) controlled substance

.‘§?v

.....

:. y "”’ §possession with intent to deliver a controlled substance. See TEflAg

 

‘.HEALTH &' SAFETY#’ GDE ANN. -§481 1112(a) "Deliver" is defined, in relevant part--, _4

 

controlled substance lies outside the section definition of "drug trafficking

.1\,\

.'offense," since the section 2L1. 2 "covers only the manufacture, import, export

v '-distribution, or dispensing of a controlled substance (or possession with the

 

_~:intent"` to do any of these things.") Garza-Lopez, 410 F.3d at 274. Thus, by'

   
  

'°.""`,‘inspecting the language of section 481. 002, defense counsel ~ Weather`spoon,

"~’no___t_ have allowed, presented or adjudicated petitioner" s cause in question under
~' the circmnstances therein.

Counsel - Weatherspoon has an obligation to protect his client' s interest

and to zealously defend his client within the bounds of the law. Gideon v.

Wainright, 372 U.S. 335, 83 S. Ct.- 792, 9 L. Ed.` 2d 799 (1963).

\;.." 1

 

Generally, counsel's strategic decisions are afforded deference so long as "

vand n"ot entitled to the deference typically afforded counsel"s choices. See

in Texas, i.»:as defined by section 481.1112 of the »"Texas H`ealth and Safety Code,“`

'f j " trafficking offense. _Section 481 112 criminalizes the knowing manu::actuz.‘e,,"v . _

"'as "-to transfer, actually or constructively, to another a controlled substance,"' l
"an'd it "includes offering to sell a controlled substance. In United States v ". |'

~';;'<§Gonzales, 484 F.Bd 71‘2, 714-15 (Sth Cir. 2007) held that offering to sell ar ~

~"‘prosecuting district attorney -'- Shannon Ross and or the trial court judge should " n

 

 

"v. Washington, 466 8 S. 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The

   

-~ §§ ‘ - q " d
A reasonably competent attorney will attempt to learn all of the facts lof_ "`

the case, make an estimate of the likely sentence, and communicate the o
'"result of that analysis. The American Bar Association (ABA) standards state
u"there is no exhaustive list of defense counsel's obligations, [p]revailing

'norms of practice a re guides to determining what is reasonable." Strickland

"3'A8A statndards indicate that "[d]efense counsel should not recommend to
M‘a defendant acceptatnce of a plea unless appropriate investigation and study
*; of the case has been completed. A8A standards for Criminal Justice Pleas

`1of Guilty, 8tandard 14-3. 2(b) (3rd Ed. 1999). "It is defense counsel's responsiblity

to investigate not only the facts concerning the offense, but also facts

that go to the defendant's potential seats nce, including his or her prior

“'7_`-record." Id., Commentary on Standard 14-3. 2 (b), p. 123. While counsel has

4_ wide latitude to make strategic decisions, "strategic decisions," "strategic
§choices made after less than complete investigation are reasonable precisely h
vito the extent that reasonable professional judgments support the limitations
1on investigation." Strickland, 466 U. S. at 690-91. The type of legally erroneous

advice petitioner Woods stress--he received from defense counsel defense _1:`

1
..1..

counsel ~ weatherspoon is precisely the type of nformatlon that is likely

to impact a plea decision. The basis of petitoner argument is that: he would

_not have rejected an plea offer and might have provided the required proffer

if he had been fully informed as to the‘ ’extent of the montmental sentencing

wrisk he was taking by continuing with the trial." Moreover, it can not be
coverlooked that petitioner entered into a plea to run concurrent with said

offense in question, which speaks volumes about whether or not  he would

" },have accepted a plea, would the prosecution offer a plea ned would the court

_ accept a plea.

l A defendant `in a criminal proceedings has a right under the Sirth amendment

_to effective assistance from his attorney at all critical stages in the

 

proceedings... See e.g. §§ll“!: Lockhert, 474 U.S. 52, 85 106 S, Ct. 366,
88 L. Ed. 2d 203 (1985); See generally'§i§§puri‘v.'FrXe, 132 S. Ct. 1399,
1405, 182 L. »Ed. 2d 379 (20125,¥;nd sentencing; eee, e.g. Glover v¢ United
§E§§§§, 531 U;S. 198, 202-04;'121 55 Ct. 696; 148 L¢ Ed. 2d SQQ (2001);

Memga v. Rh&g¢ 389 U.S. 128;'134, 88 S. 'GT. 254, 19 L. Ed. 2d 335 (1967).

_The attorney has an "overaching duty to advocate the defendent'e cause."

Strickland, 466 U.S. at 688.

The Supreme Court'e recent decisions in Mcggiggin v. Perkins, (No. 12¢126)
(S. Ct, way 28, 2013), whic§'held actual innocence if proved serves a gateway
through which a petitioner may pass whetherthe impediment is a procedural
ber or expiration of the AEDPA statute of limitatione... And Trevino v.
§§§l§£, (No. 11»10189) (S¢ Ct¢ May 285 2013) recognized that "procedurel
default will not ber a pest~conviction court from hearing a substantial
claim of ineffective aseietance of counsel;.;"“

The Supreme Court held in Gall~v. United'STates, 552 U.S. 38, 51, 128

 

S. Ct. 586, 169 L. Ed. 2d 445 (2007), we must first ensure that the sentencing
court made "no §§gyificent procedural error;" including-"selecting a sentence
based on clearly erroneous facts;" or failing to adequately-explain the
chosen sentence¢"

Pursuant to United States v.'Tucker3 404 U;S; 443, 447, 92 S. Gt.-589,
591-92, 30 L. Ed.'Zd'§QZ-'(1972')o held when errors of this nature ere alleged
to have effected the defendant's eentence,~we review the lower court record
to determine whether-the court actually relied on the inaccurate information
in sentencing the defendant@ "A sentencing court demonstrates actual reliance
on misinformation when she court givee"explici rattention' to it, 'founds'
its senteoce 'at least in part; on it, or gives ' specific consideration'
to the information before imposing the sentence." Id. §§£§§£, 404 U.S. et
444, 447 92 S¢ Gt. at 590,‘592;

where a "plain error" is found to eriet, a court of appeal day ”exerciee

-3_ v

its discretion to notice a'forfeited error;;; only if .,¢ the error seriously
affects the'fairness; integrity, or public reputation of the judicial~proceed-
inge." United Statea~v; Cotton, 635 H.S;'625, 631, 122 S.;Ct.'l?$l,al§g#

L. Ed. 2d 860.(2002).~ ' ' l

l lt is tarely,'if,ever, arguable that an illegalsentencedoes'n_ot¢conatitue4
-plein error. United STates:v; ?awlinski, 374 F;3d 636, 540-41 (7th Cir,

2004), By its very natureg therg is an error-it ia plain, it affects the
~defendant'e eubetantial'rightjend'it impugns the reputation of the judicial
proceedingn, “It'ie a fundemental~miscarriage'of'juetice to give a person

an illegal eentence that increase his punishment; just aa it is to convict

an innocent person;”‘United'States v. Paladino, 401 F;Bd 471, 483 (7th_Cir,
2005§. And by allowing an illegal sentence "to stand would impugn the fairnees,
integrity, end public reputation of the judicial proceedings." §i§§gn, 356
F.zd at 757;

In less than four (4) months, defense counsel Weatherapoon, had entered
his appearancep could not or would not mount a-viable defenee.for his client,,
counsel failed to cell any witnesses (expert or otherwise) on behalf of_
the defenee. A finger print'ezpert;'DNA expert or drug analyeie_enpert to
ensure the prosecution‘e case can pass the constitutional mustard that the
Sixth- Amendment requiree,'.'_"United"Stetes"V`. :Qi‘onic“,"'_laoé vU,.S,. 648,_. 1014 S_» '

Ct. 2039, L¢ Edr 2d 657 (1984), the'Supreme Court held that "the right to
~effective assistance of counsel'is'thusz~the right of eccueed-to requirel

the prosecution's case to survive the crucible meening of adnerserial testing.
When a true advereerial criminal trial has been conductede~even defense

counsel may have‘made demonstrable errors-the'kink to testing envisioned

by the~Sixth Ane;dment has occurred"-Id; athUé ; Strickland, eupra, Independent
'evidence, nhether that would come from the baggie alleged to have contained
cocaine, and Lab Analysis regarding whether or not the alleged drug discovered

was fact cocaine and the actual amount therein, or fingerprintls]/DNA linking

¢-9~

petitioner to the prosecution to theory. This crucial point of evidence

was relied'on by the prosecution to carry the day as independent evidence
that petitioner Woods was waist-deep in the offens[s] charged in the indict-
ment. This was paramount, because of its independency to substantitate the
prosecution's case~in-chief. Absolutely, had defense counsel ~ Weatherepoon,
(a veteran, professional trial counsel) took the initiative to have prints
lifted from the baggie examined by-independent finger-print expert[s],

and or have that baggie examined by - independent DNA expert[s], this would
have helped serve as a catalyst in negotiating a plea, or provided credible
evidence for the defense in trial depending upon the expert[s] findinga.
Either way, defense counsel would have been protecting his client's interest,
and zealously defending him within the bounds of the law. Nevertheless,*
armed with this information, defense counsel - Weatherspoon proceeded to
trial without subpoenaing one witness for his client and the defense.

, Petitioner was the only witness to testify for the defense. Thus, logically
speaking, without any witnesses to corroborate petitioner's claim of innocence
(which counsel was privy to prior to trial), it would have been advantageous
for defense counsel to discuss a plea on this offense also, since he had
negotiated a plea under Cause No F89-A4738 to run concurrent with this offense
'in question. Instead from every legal indication, it appears defense counsel
- Weatherspoon, advised his client to enter into a sky dive without so much
as a parachute. Therefore, the question before this court is whether under
the Sixth Amendment of the United States Constitution, Cannon Rules of Pro-
fessional Conduct and The American Bar Association did petitioner Wbods
receive ineffective assistance of counsel at any critical stage[s] of Cause

No. F90-29380 and or Cause No. F89-A4738.

CONCLUSION
For our adversarial system of criminal justice to function, a defendant

must have one person who is zealously acting in his interest ~ his defense

-10_

lawyerr'Criminal defense lawyers have many duties. fhose duties include
trying to save their client from their own folly, especially as they face
an intimidating and even frightening criminal justice system. That point

is so true in critiquing the awesome responsibilities of a defense attorney.
Now the operative question stands as who's to save the defendant fromthel
folly, or the egregious error of his defense counsel.

Petitioner has submitted EXHIBITS A through F along with case authority
to demonstrate by a preponderance of evidence; that he received ineffective
assistance of counsel in Cause Nos. F89-A4l38 and F90-29380.

Petitioner Woods contends but for counsel - Weatherspoon's ill»advice,
lack of investigation and preparation that a different result - a beneficial n
one for petitioner would have transpired.

Based upon the above significan and compelling circumstances this Court
should Vacate petitoner's current conviction in this caser At the minimum
an evidentiary hearing should be ordered with the appointment of counsel
in this case.

The state of Texas request this Court to gather evidence by requesting
an affidavit from petitioner's attorneys Kenneth Weatherspoon which provides
information needed to dispose of petitioner's claims. First, an attorney
is fallible, capable of not recalling certain details; However, petitioner
Woods has submitted EXHIBITS A through F, and the record which is NOT`fallible,
and it does NOT change for anyone. Second, an evidentiary hearing would
wsllow this Court to hear from the attorney in question, the petitioner,
the prosecution and petitioner's appointed counsel for the purposes of this
hearing and in the interest of justice.

Petitioner states that all of the above is true and accurate to best
of his knowledge, and against the offense of state and federal perjury.
DAIED: January 26, 2015 d

Res ectfully submitted

/s/ £TI£;¢LZ€7 ZX) iv

’ \

-11-.

Rodney Lewis woods #18898-078

cERTIFicATE 0F SERVICE

I hereby certify that a copy of the foregoing has been forward~tbrthe

following by U.S. Mail on January 26, 2015:

Rebecca D. Ott

Assistant District Attorney
State Bar No. 24074842

Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399

l/S/ rpij /_()~fo@\d

Rodney Lewys Woods #1889

_12_

