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IN REcoLLle o. NYABWA

lN THE 5TH cchulT couRT oF APPEALS

PETlTloN FoR ExTRAoRDlNARY WRlT
(MANDAlvlus) `

RECE|VED lN
COURT OF CRIMINAL APPEALS

SEP ‘i lt 2015
' Abe| Acosta, C|erk

coLuNs o. NvABwA
PETITIoNER (PRo sE)

1341 w. 43“° sTREET, #163
` HousToN, T)_< 77018

TABL_E_oF coNT§NTs

|SSUES PRESENTED

 

L|ST OF PART|ES'
ARGUMENT
REL|EF SOUGHT
WHY WR|T SHOULD |SSUE

 

CERT|F|CATE OF SERV|CE

 

. COPY OF 42 U.S.C. § 1983 CON|PLA|NT

|SSUES PRESENTED '

1. Does subjecting meritorious Pro se litigants to unnecessary delays
using needless procedural technicalities amount to Judicia|/Politica|
Oppression?

2. Are State Appe||ate justices bound by 5th Circuit precedents?

LlsT oF PARTlEs

COLL|NS O. NYABWA (PET|T|ONER PRO SE)

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

(REsPoNoENT)

U.S. MAG|STRATE JUDGE FRANCES H. STACY, U.S. DlSTRlCT COURT, SOUTHERN

DlSTRlCT TEXAS (RESPONDENT)

ARGUMENT

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

4 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 Appe||ate courts on issues surrounding the constitutionality of §21.15(b)(1) given the
obvious political realities in Texaleeeply Republican state). The political posturing however_has
gone on too long causing petitioner to suffer needlessly from his void convictions. The Texas
Court `of Crimina| Appea|s on 9/17/2014 unanimously declared §21.15(b)(1) unconstitutional in
Ex Parte Ronald 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||y 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 Thoszon, instead of granting petitioner
the clearly merited relief and ruling on his ”actua| innocence" claim, the federal magistrate
forced upon petitioner a court appointed attorney to file yet another state habeas at the Texas
’Court of Crimina| Appea|s. 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 "actua| innocencef' 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-Requena v United States, 243 F. 3d 893, 903-4 (5th 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 |Ml\/lED|ATELY takes over his federal §2254 habeas, GRANT REL|EF and
declare petitioner ACTUALLY |NNOCENT or; z

2. Direct the,Federal Magistrate to |MN|EDIATELY lift the politically motivated STAY,
GRANT REL|EF and declare petitioner ACTUALLY |NNOCENT or;

3. |fjurisdictiona|ly feasible ORDER the Texas Court of Criminal Appeals to |l\/|MED|ATELY

GRANT REL|EF and declare petitioner ACTUALLY |NNOCENT

LE_rASONS WHY WR|T SHOULD |SSUE
WR|T W|LL BE lN AlD OF COURT'S APPELLATE JUR|SD|CTION

Both the U.S. District Court and Texas Court of Criminal Appea|s fall~within the jurisdiction of
the 5th Circuit Court of Appea|s. Appe||ate problems emanating from these court, political or
otherwise, ultimately reflect upon the 5th circuit court. Petitioner’s case is one of'po|itical

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. Simp|y stated partisan judicial elections are
t 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 l\/|arsha
Ternus (Former |owa Chief Ju_stice) and Barbara Pariente (Former Florida Chief Justice) have

both acknowledged the problem.

g;RTlFchT§ oF sl;:vac§

l Co||ins 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
v Houston,TX 77002
2. Presiding Judge Sharon Keller
. Court of Criminal Appea|s
P.O. Box 12308 l

Austin, Texas 78711
Co||ins O. Nyabwa
Petitioner (Pro se)

1341 w. 43“° street, #163

Houston, ~TX 77018

