~z\U,OlOH /OQ//U) //

|N RE'CGLL|NS O. NYABWA

IN THE 5"' cchulT couRT oF APPEALS

PETITIoN FoR ExTRAoRDlNARY WRlT
(MANDAl\/lus) ’

RECE|VED |N
COURT OF CR|M|NAL APPEALS

SEP ‘i 4 2015
Abe| Acosta, Clerk

coule 0. NYABWA
PETlTloNER (PRo sE)

1341 w. 43'“’ sTREET, #163
' HousToN, Tx 77018

 

TABLE OF CONTENTS

|SSUES PRESENTED

 

LlsT 0F PARTlEs`
ARGuMENT

 

REL|EF SOUGHT

 

WHY WR|T SHOULD |SSUE

 

CERT|F|CATE OF SERV|CE

 

. coPY oF 42 u.s.`c. § 1983 coMPLAINT

|SSUES PRESENTED '

1. Does subjecting meritorious Pro se litigants to unnecessary delays
using needless procedural technicalities amount to Judicial/Political
Oppression?

2. Are State Appellate justices bound by 5th Circuit precedents?

LlsT oF PARTlEs

COLL|NS O. NYABWA (PETIT|ONER PRO SE)

' PRES|D|NG JUDGE SHARON KELLER, TEXAS COURT OF CR|M|NAL APPEALS

(REsPoNDl-:NT)

U.S. MAGlSTRATE JUDGE FRANCES H. STACY, U.S. D|STRlCT COURT, SOUTHERN

DlSTRlCT TEXAS (RESPONDENT)

ARGUlVlENT

Petitioner will briefly state his case which is spelt out in detail in the attached 42 U.S.C. § 1983
complaint. Petitioner was charged and convicted in Texas with 3 counts of |mproper

» Photography

§21.15(b)(1). The Texas law is classified as a sex crime which inherently makes it a political ”hot
potato" within Texas Courts-striking it down comes with political consequences As this court
knows, Texas Judges are elected through partisan judicial elections in much the same way as
regular politicians. Since 2011 petitioner has filed successive writs both in state and federal
court (inc|uding yours) arguing that §21.15(b-)(1) on its face violates the First Amendment of the

U.S. Constitution.

Petitioner readily admits that from the beginning he expected some apprehension from
the Texas Appellate courts on issues surrounding the constitutionality of §21.15(b)(1) given the
obvious political realities in Texas(Deep|y Repub|ican state). The political posturing however,has
gone on too long causing petitioner to suffer needlessly from his void convictions. The Texas
Court of Criminal Appeals on 9/17/:014 unanimously declared §21.15(b)(1) unconstitutional in
Ex Parte Rona/d Thompson, S.W. 3d_(Tex.Crim.App. 2014) (No. PD-1371-13; 9-17-14). This
however opened up yet another ”hot potato" valid legal question in Texas-Whether people
convicted and imprisoned using §21.15(b)(1) are ”actua|ly innocent” and thus entitled to state

compensation?

At the time of the ruling in ExParte Thomgson, petitioner's federal §2254(case # 4-12-cv-

01152) was on remand from your court to U.S. Districthourt, Southern District, Texas

5

(Houston). Your court had already ruled that petitioner had exhausted state remedies. Your`
Court also assigned the proper respondent (TDCJ Director). The federal'magistrate however in
an effort clearly meant to unnecessarily delay the case, assigned federal immigration officials as
respondents in petitioner's case. Then after Ex Parte Thomg$on, instead of granting petitioner
the clearly merited relief and ruling on his ”actual innocence” claim, the federal magistrate
forced upon petitioner a court appointed attorney to file yet another state habeas at the Texas
Court of Crimina| Appeals. The magistrate stayed petitioner's federal habeas while the sua

sponte attorney sought relief with the Texas High Court.

As petitioner stated in his 42 U.S.C.§1983 complaint, all this was part of a politically
motivated delay aimed at not entertaining petitioner's ”actual innocence'_' claim until after
September 1, 2015 when the new improper Photography law comes into effect. The federal
magistrate would have been forced to grant petitioner's ”actua| innocence” claim based on
Reves-Reauena v United States, 243 F. 3d 893, 903-fl (5"‘ Cir. 2011) and thus for purely political
reasons decided to take petitioner back to state court. Petitioner has suffered terribly as a

result and hopes the 5th circuit court seriously reprimands this errant magistrate.

REL|EF SOUGHT

Petitioner kindly request that;

1. This Court ll\/|l\/|ED|ATELY takes over his federal §2254 habeas, GRANT REL|EF and
v declare petitioner ACTUALLY |NNOCENT or;
2. Direct the_Federal |\/|agistrate to |l\/lMED|ATELY lift the politically motivated STAY,
GRANT REL|EF and declare petitioner ACTUALLY |NNOCENT or;
3. lfjurisdictionally feasible ORDER the Texas Court of Crimina| Appea|s to |I\/|I\/|ED|ATELY

GRANT REL|EF and declare petitioner ACTUALLY |NNOCENT

EASONS WHY WR|T SHOU|_._D |SSU_E_
WR|T WILL BE |N AlD OF COURT'S APPELLATE JURlSDlCT|ON

Both the U.S. District Court and Texas Court of Criminal Appeals fall-within the jurisdiction of
the 5th Circuit Court of Appea|s. Appellate problems emanating from these court, political or
otherwise, ultimately reflect upon the 5th circuit court. Petitioner's case is one of'politica|

oppression which should be taboo in any circuit not just the 5"‘.
STATE APPELLATE PROBLEl\/l ACKNOWLEDGED

Petitioner's writ also raised a serious problem plaguing state appellate courts that has been
acknowledged by senior appellate justices. $imp|y stated partisan judicial elections are
wrecking havoc on judicial independence in state appellate courts. As petitioner stated in his 42
U.S.C.§ 1983 complaint, these are not the mere rumb|ings of a convicted felon. Justice I\/|arsha
Ternus (Former lowa Chief Justice) and Barbara Pariente (Former Florida Chief Justice) have

both acknowledged the problem.

CERT|F|CATE OF SERV|CE

l Co|lins O. Nyabwa hereby certify that on this the 24th day of August 2015 a true and proper

copy of this petition was mailed to the defendants at the following address:

1. U.S. Magistrate Frances H Stacy
515 Rusk Street
4 Houston,TX 77002
2. Presiding Judge Sharon Keller
Court of Criminal Appeals
P.O. Box 12308

Austin, Texas 78711

Co|lins 0. Nyabwa

Petitioner (Pro se)
1341 w. 43"° street, #163
Houston, tTX 77018

