"··


                                       IN THE
                              COURT OF CRIMINAL APPEALS
                                      OF TEXAS

      Ex parte,                          §
          Emzy Lorenzo Miller
                                         §    Cause· No. WR-53,571-09

                                                                 RECE~VED IN
                                         §
                                                                                   ·
                      SUGGESTION THAT THE COURT RECONSIDER COURT OF CRIMINAl APPEALS
                        ON ITS OWN MOTION THE DISMISSAL OF
                       THE SUBSEQUENT APPLICATION FOR WRIT      FEB 26 2015
                                 OF HABEAS CORPUS

          To The Honorable C6urt Of Criminal Appeals~       Abe: Acosta, Clerk
              Emzy  Lorenzo Miller, Miller, files this Suggestion That
      The Court Reconsider On     Its Own Motion The Dismissal Of The
      Subsequent   Application For Writ of Habeas Corpus, pursuant to
      Rule 79.2(d) of the Texas Rules of Appeallate Procedure(TRAP).

                                         I.
                                 PROPOSED SHOWING

              Miller proposes      to show     the Court      that it dismissed
      his  habeas corpus application without written order under .Tex~s
      Code of Criminal Procedure(CCP), Art. 11.07, §4(a)-(c), on Octo-
      ber 8,2014,    and   that it should reconsider that decision on its
      own initiative for the following reasons:
          (1) Subsequent habeas applications are governed by Art.
              11.07,   §4,   which was enacted in response to Schlup v.
              Dele and therefore becoming a liberty interest to applic-
              ants,   protected by     their 14th Amendment right to due
              process;
          (2) Miller   raised a     Schlup-tYpe actual        innocnece claim,
              wherein he presented new evidence              that demonstrated
              3 constitutional      violations     that   probably resulted in
              the conviction of one actually inoccent,· yet the Court
              clearly made a decision based on an unreasonable applica-
              tion of     the facts and that was contrary to u.s. Supreme
              Court ,Law;
          (3) Miller   rai~ed   a   void    judment claim predicated on new
              evidence demonstrating        that   his   5th Amendment    right
              to collateral estoppel was vioYated, yet the Court made
              a  decisio~    based on an unreasonable application of the
              facts and that was contrary to u.s. Supreme Court law;
          (4) The Court     failed   to conduct a pr6per revie~ pursuant
              to Section 4,       instead relying       upon   Findings of Fact
              that   failed   to. address Section 4 subsequent standards
              and that lacked Conclusions of Law altogether;
          (5) Mille~'s habeas application was accompanied by a demonst-
              ration   that   failure    to   review merits would result in
              a   fundamental   miscarriage of       justice,    yet  the Court
              failed to review the application under Sawyer v. Whitley,
              and Schlup precedent,      thereby rendering a decision that
              was contrar~ to Supre~e Court Law.,

               All   the evidence that Miller relies upon in this Sugges-

                                         1.
 tion exists in this Court's records.


                                    II.
                            STANDARD OF REVIEW

          TRAP, Rule 79.2(d) states in pertinent part:
              "A motion    for rehearing an order    that
              denies habeas corpus relief under Code
              of Criminal Procedure, Art. 11.07 or 11.071
              may not be filed. The   Court  may on    its
              own initiative reconsider the case."
           Rule 79.2(d) unambiguously directs state habeas petition-
 ers   not   to file motions       for   rehearing. However, the CCA has
 entertained motions       for  reconsideration,     notwithstand~ng      the
 language in 79.2(d). See Ex parte Graham, 853 s.w. 2d 565(Tex.Cr.
 App.l993); Ex parte Smith, 977 S.W. 610(T~x.Cr.App/l998)~en bane);
:Ex parte Lemke, 13 s.w. 3d 79l(Tex.cr.App.2000). In Graham, after
 the cca denied state habeas peitioner's application for relief,
 the   petitioner    filed   a motion requesting       reconsideration of
 the Court.     @566.   The Co~rt, citing 213{b) agreed to reconsider
 its denieal, though stating that it did so on its "own motion."
      Similarly, in Smith, the CCA dismissed an          application      for
 post-conviction habeas relief.          @610.   The petitioner filed a
 "Suggestion ·For Reconsideration",          which the tourt reconsidered
 before rejecting. In Lemke, a         state    habeas petitioner filed
 a   "Motion For Reconsideration(On The Court's Own Motion) Of
 The Refusal     To Grant      Relief In Application For Writ of Habeas
 Corpus." @793.   The Court gran ted       the · motion and filed and set
 the application for submission.
           Therefore   the Texas Court has         provided state habeas
 peitioners with the hope that a motion or suggestion for reconsi-
 deration may be successful.           "Meanwhile,   no cases habve been
 found   where Texas Courts have held that 213(b) of TRAP," which
 was superceded by 79. 2 (d),        "does not     pecmi t the f i 1 ing of a
 motion for reconsideration." Emecson v. Jophnson, 243 F.3d 931,935
 (5thCir.2001).

                                  III.
                      REASONS FOR """REcONSIDERATION

     (l) Art. 11.07, §4 And Schlup
         The subequent application provisions in Act. 11.07 were
enacted in response to Schlup v. Dele, 513       u.s.   298,115 s.ct.
851,   which held    that   the   fedecal habeas petitioner must show
that a    constitutional violation "more likely than not'' resulted
in the conviction of an innocent person. Ex pacte Brooks, 219 s.
W. 3d 396(Tex.Cr.App.2007).
         While   the   text of §4(a)(2) does not specifically state
that   the applicant must make a prima facie claim of actual inno-
cence,   rather,   all   that   is necessary is a prima facie showing
of actual    innocence,    sufficient ta overcome Section 4, so that
we can then consider the merits of his claim will be considered.
"It  is not    necessary    for an applicant to prove his innocence,

                                     2.
rather, all that is necessary is a prima facie showoing of actual
innocence,  sufficient   to overcome   S~ction  4,  so that we can
then consider the merits of the claim." Brooks@400.
       The CCA   has   consistently held   that the purpose of the
subsequent writ   provisions   is  to provide review only in those
cases where the legal basis for the claim was previously unavail-
able, or to remedy a miscarriage of justice.

        Miller's application claims (l)that new evidence demonstr-
ates   that   his   judgment of murder was void under Texas law due
to a violation of his 5th Amendment right to collateral estoppel;
and (2)that new evidence demonstrates 3 const{tutional violations
during    the  course of     his  prosecution   that probably resulted
inthe conviction of one actually innocent.
        Both of Miller's claims are predicated on the newly disco-
vered evid~nce of Tanisha A. Cleveland's(Cleveland) pleah-hearing
transcripts and      post-judgment   records.   By Texas   statute and
CCA   precedent,    this Court has a very specific procedure in how
to deal with subsequent writ applications. Because Miller alleged
a void judgment due to a u.s. Constitutional violation and actual
innocence due      to U.S.    Constitutional  errors,   his claims are
Federal    constitutional    claims and   this ·court's procedures are
emulations of      Federal   law, thus the resolution of these claims
must   conform to U.S.       Supreme Court law. Failure of this Court
in   this   regard   w~uld   result  in a violation of Miller's 14th
Amendment right to due process.


   (2)   Prima Facie Showing of Sufficient Specific Facts/Evidenti-
         ary Hearing

        Under Section 4       this Court may not consider the merits
of an application unless it ~ncludes sufficient specific facts
establishing    that,    the current claims and issues have not been
and   could   not   have   been presented previously in an original
application or      in a    previously considered application because
the   factual   basis was     unavailable on the date of the original
application;    or by a      preponderance of   the evidence, but for
u.s. Constitutional violation .no rational juror could have found
the applicant guilty beyond a reasonable doubt.                     ·
        However, under CCA precedent in Brooks, this Court determ-
inned   that   all   that   was  necessary to overcome the subsequent
bar was that the applicant make a prima facie showing to warrant
review of his claims on themerits.                              -
        As such, this Court must determine if Miller's application
makes a prima facie showing of "sufficient specific facts'' e~tab-
lishing:                                                          ·
            1. the claims are new;
            2. the claims 'rely on      factual predicate unavailable
               at time of previous application;
            3. the   factual predicate was not ascertainable through
               due diligence;
            4. constitutional violations exist throughout prosecut-
               ion;
            5. but   for   violations no   rational  ju!or could find
               guilt beyond a reasonable doubt;
            6. t~e new evidence is reliable.
                                       3.
        Hon.    Judge     Karen Sage(Judge Sage)      issued  Findings of
Fact   in response to the instant application. As an initial matter,
Judge Sage did not include Conclusions of Law with her Findings.
She was     not    the    presiding judge of the original prosecution ·,
so could not personally attest to any of the facts of thee case.
She did not hold an evidentiary hearing(which Miller specifically
requested    in a separate motion accompanying his habeas applicat-
ion).
        In Wilson v. Beard, 426        F.3d  653(3rdCir.2005), the court
found   that    ''when a     petitioner requests a hearing to develop
the record on a claim in state court, and if the state courts ... -
deny   that   request      on basis of an inadequate state ground, the
petitioner has not 'failed to develop the factual basis of [the]
claim in state court proceedings' for purpose of §2254(e)(2)."
        Where     the state court should have made a finding of fact,
but   neglected     to do so, the state court factual determination
is perforce unreasonable and there is nothing to which a presump-
tion of correctneis may attach. Taylor v. Maddox, 366 F.3d 992(9th
Cir.2004)[citing Wiggins v. Smith, 539 u.s~ 510, 123 s.ct. 2527,
2539~40(2003)        Where    the state does make       factual findings,
but does so under misapprehension as to the correct legal stand-
ard,   the   resulting      factual   determination will be unreasonable
and no presumption of correction can attach to it. TaylotlOOl.
        Closely related        to cases where      the state courts make
factual    findings     infected by substantive legal error are those
~here   the   factfinding      process   itself is defective. If a state
court makes evidentiary          findings without holding a hearing and
giving    petitioner an opportunity to present evidence, such find-
ings clearly result          in. an "unr~asonable determination'' of the
facts. Taylor@lOOl; Bower v. Quarterman, 497 F.3d 459,466(5thCir.
2007)(Betause      the state habeas _judge did not preside over a
trial or conduct an evidentiary hearing, the state habeas court's
factual    findings are not entitled to a presumption of cortectn-
ess.@466).                                        ·
        The u.s. Court o~ Appeals for the 5th Circuit(5th Circuit)
reviews    Texas cases.       By   their  interpretation of u.s. Supreme
Court   law,    because Judge Sage was not the origin~l piesiding
judge of this cause, in making findings of fact~ she was obligated
to   hold   an evidentiary hearing,         replete with the ordering of
affidavits and allowance of Miller             to present evidence, NOT
to consider the merits, but merely to determine th€ requirements
of   Sectio~    4    for the possibility of reviewing the merits. The
fact   that   she didn't disentitles her findings to a presumption
of correctness because they are perforce unreasonable. Furtherm-
ore,   Judge Sage's findings reflect that she clearly miscomprehe-
nded Section 4         in   that   the findings in no way addressed the
necessary elements by which            to conform to the correct legal
standard, thereby resulting in an unreasonable factual determina-
tion. Taylor@lOOl.

        The u.s. Supreme Court noted in Miller-El v. Cockrell~ 537
u.s.   322, 123 s.ct. 1029 that the state court fact-finding proc-
ess is undermined where the state court has before it, yet appar-
ently   ignores,  evidence  that supports petitioner's claim.("Our
concerns are amplified by      the  fact that the state court also
had   before it, and apparently ignored, testimony that the Dallas
                                  4.
County Distcict      Attocney's Office had,      by its own admission,
used   this   process   to manipulate the racial composition of the
jucy in the past.")@l044.
        The   evidence   in   the instant case of Cleveland's records
demonstcates    that on a      voluntacy guilty plea, Cleveland was
convicted of     the   intentional   murde~. of Johnston as the sole,
pcimary actor(an      offense whose     ciccumstances consist of one
gun   that   only one    individual   shot to caue Johnston's death.)
Miller pcesented      this   evidence attached    to his mem~randum of
Law and     specifically drew     the Court's attention to the fact
that in this case, with the ciccumstances as they are, two people
could   not both commit the offense alleged, as separate primaries
and under separate causes. The evidence is clear that Cleveland;
was   convicted as     such 4    months   before Miller's prosecution~
In· other words, the Court had before it, and apparently ignored,
irrefutable eyidence that J6hnston's factual killer(i.e., primary
actor, triggerman, murdecer) was convicted, sentenced and impris-
oned   before   Miller's    prosecution even began,     which standing
alone,   supports    Miller's   claims so strongly that it ~ndermine~
the state court fact-finding process. Taylor@lOOl. Conjoined with
the other evidence       Miller presented, Miller at least succeeded
in   presenting   claims    that warranted further review, i.e., made
a "prima facie showing".


   (3)   Inadequate Findings Of Fact
         On   the    face of Judge Sage's Findings, notwithstanding
the afore-mentioned deficiencies,           it   is clear that it was not
found,that the claims were new in relation to the original aplic-
ation.     Instead,    Judge   Sage relied upon the erroneous dismissal
of   Wr-it   No.   WR-53,571-06    in order to find that Miller "merely
repeats     the argument      made  in  the    -06 application that he is
actually innocent~ •. ".(Finding #6).
         In   writ    ~06,   however,  it was not found that the actual
innocence     claim was      new,  and in that writ, Judge Sage herself
relied upon the dismissal of writ WR-53,571-05(writ -05) stating,
"it    merely    repeats   the argument     made   in the -05 application
that    he   is   acutaLly innocent .•. ", yet in writ -05, no findings
of   fact were issued at all, revealing that the Court never found
that the claims were new or not, per statute.
    Further, in writs-06 and -09, Miller raised different, second
claims     that   Judge Sage failed to acknowledge altogether, there-
fore failing to make any finding regarding them.
         On   the    face  of ,Judge Sage's Findings it is clear that"ll\i>~t-b' 10::.
ho   finding of whether or not the claims rely on a factual predi-
cate    that    was unavailable at the time of the previous applicat-
ion.    There was      no finding regarding evidence at all, therefore
this Court could not reasonably ascert~in the value of the evide-
nce    supporting     Miller's claims in conformity to Section 4. Not
according to Judge Sage's Findings.
    On   the    face   of Judge Sage's Findings it is clear that she
fouhd    Miller    raised     an actual   innocence claim, despit~ her
misstatement      of   the nature of the claim, yet that is the extent
of her finding. No finding was made into whether or not ~onstitu­
tional     violations existed throughout Miller's prosecution, ther-
efore    it naturally follows that no finding was made into whether
or   not    but   for   those ~iolations any rational juror could have
                                      5.
,,


     found Miller guilty beyond a reasonable doubt.
              Because     of Judge Sage's cle~r failure to make the necess-
     ary   findings      that    give     this Court the proper information upon
     which    to   apply     Section 4's requirements, this Court could not
     determine•     §4(a)(l)       regarding     the   presentment   of   new claims
     and   the    availability of t~eir factual bases. Section 4(c) could
     not   be determined regarding diligency on Miller's part. As such,
     this   Court     could     not have .reasonably applied the proper legal
     standard in dismissing Miller's application under Section 4(a).
              Because     of Judge Sage's clear failure to make the neces-
     sary   findings      that     give this Court the proper information upon
     which    to apply Section 4, this Court could not determine Section
     4(.a)(2)    regarding· a       prepondernance of       evidence    that but for
     u.s. Constitutional errors no rational juror could find guilt
     beyond a      reasonable       doubt.    As such, not only could' this Court
     not   apply     the    proper     legal    standard in determining dismissal
     or   not,    but it       could    not properly apply Supreme Court law in
     Schlup in determining            whether    or not Miller stated ''sufficient
     specific facts'' making a prima facie showing of actual innocence,.
     which is exactly the manner in which Miller brought his claims.
              In Williams v. Taylor, 529 u.s.             362, l20S.Ct. 1495(2000)
     the   u.s. Supreme Court held that under 2254(d)(l) the writ may
     issue only       if one of the following two conditions is satisfied-
     -the state-court adjudication resulted in a decision that (l)"was
     contrary     to ... clearly established          federal  law,   as deteimined
     by· the Supreme Court             of   the    United States," or (2) "involved
     an   unreasonable       application of •.. clearly       established    Federal
     law,   as    det~rmined       by   the Supreme Court of theUnited.States."
     Federal     relief     is   also. granted       under 2254(d)(2)    if a state-
     court    decision      resulted in a decision "based on an unreasonable
     determination       of    the    facts   in light of the evidence presented
     in the state-court proceeding."
         Miller    concedes th~t this Court is not bound by Federal Stat-
     ute.   However,      it    is    boundby u.s. Supreme Court precedence and
     as   such,    it    must adhere to Federal law while enforcing its own
     statutes.


          (4)   Inadequate Section 4 Review
                    Because        this    Court    had      a     statutory duty to review.
     ~iller's       subsequent writ            within ·the           purview of Section 4; to
     ascertain        if      he   stated    "sufficient           specific       facts" ofeither
     or both of the enumerated requirements, Miller had a u.s. Const-
     i~utional        liberty interest in receiving a proper review, protec-
     ted    and     guaranteed        him through the 14th Amendment. As detailed
     above,      the district court failed to conduct an adequate develop-
     ment     of    facts        sufficient     for thiS Court to properly apply the
     legal     standards set forth in Section 4. By this Court dismissing
     Miller's application               in   spite of the deficiencies and lack of
     adherence        to      statute,     it made those deficiences its own, which
     resulted in an inadequate Section 4 review.
               Furthermore,          u.s. Supreme Court law is fery clear on
     wh a t ·cons t i t u t e s a " fund amen t a 1 mi s c a c r i a g e of j s u t i c e " e x c e p t ion .
     In    appropriate ~ases,              the    principles of            comity and finality
     that     inform        the    concepts of       cause and prejudice "must yield

                                                       6.
to the imperative of correcting a fundamentally unjust incarcera-
tion.P Schlup@320[quoting Murray v. Carrier, 477        u.s.  478,496,
106 s.ct. 2639,2649(1986)].
         The fundamental      miscarriage of    justice exception   is
confined   to cases of actual        innocence. ''where the petitioner
shows,   as a    factual    matter,  that he did not commit the crime
of conviction." Fairman v. Anderson, 188        F.3d   635,644(5thCir.
1999); Shelton v. King, 548 F.Supp.        2d  288,304(S.D.Miss.2008).
To establish     the   requisite probability of innocence, he must
"Supper~   his allegations with new, reliable evidence that was
not   presented at     trial and must show that it is 'more likely
than not    that   no reasonable juror would have con~icted him in
light of the new evidence'." Fairman@644(quoting Schlup@327.)
         Examples of new,       reliable evidence that may establish
factual innocence include exculpatory scientific evidence, credi-
ble declarations of guilt by another, trustworthy eyewitness
accounts and certain physical evidence. Fairman@644[citing Sawyer
v. Whitley, 505 u.s. 333,340, 112 s.ct. 2514(1992).]
         As mentioned above,        Miller presented the plea-hearing
transcripts and      post-judgment records of cause no. 000753 with
his application,      wherein Cleveland was convicted onher valid
guilty plea as       the sole, primary actor for Johnston's murder.
Miller was subsequently convicted as           the sole, primary actor
for murdering Johnston. By u.s. Supreme Court standards, Clevel-
and's guilty plea and conviction thereon, for which she is curre-
ntly still imprisoned on,         constitutes a "credible declaration
of guilt by another", yet this Court never considered the evide-
nce and    thus could not properly apply the appropriate Supreme
Court   legal standard in determining whether Miller met the fund-
amental miscarriage of        justice standard or not, despite Miller
having directly raised actual          innocence claims and briefed on
miscarriage standards in his memorandu~.


                                 IV.
                             CONCLUSION
        Wherefore. all   premises considered, Miller respectfully
prays that this court grant this motion and on its own initiative
reconsider  the dismissal of his subsequent habeas application
so as   to ascertain whether or not a proper review was conducted
under Section 4, and if not, one may be held.
        Miller asks    this  towards the ends of justice and no
party will be harmed by this Court's granting of this suggestion.

                                                           Submitted,


                                                              Miller
                                                              Pro se
                                                              FM 632
                                                     Kenedy, TX78119
                                               John B. Connally Unit



                                  7.
                                                    February 22,2015



    Dear 'Clerk of the Court of Criminal Appeals,

        Enclosed, please find the following:
            1.  Suggestion That The Court Reconsider On Its Own
                Motion The Dismissal Of The Subsequent Applica-
                tion For Writ Of Habeas Cotpus.

         Will  you please file this document under the appropriate
cause number and       present- it  to the court for consideration?
Included with    this   letter  is a   second, ideritical letter and
if you would please date-stamp the copy and return it to me
via  the   included   self-addressed,  stamped envelope,    it would
be greatly appreciated.
         Thatnk you for your time and assistance in this matter!




                                                                 se
                                                         899 FM 632
                                                   Kenedy, TX 78119
                                              John B. Connally Unit




                                 1.
                                                    February 22,2015



    Dear Clerk of the Court of Criminal Appeals,

        Enclosed, please find the following:
            1.  Suggestion  That The Court Reconsider On Its Own
                Motion  The  Dismissal Of The Subsequent Applica-
                tion For Writ Of Habeas Corpus.

          Will   you please file this document under the appropriate
cause   number    and    present  it  to the court for consideration?
Included    with   this   letter  is a   second, identical letter and
if  you    would   please date-stamp the copy and return it to me
via   the   included    self-addressed,  stamped  envelope,  it would
be greatly appreciated.
          Thatnk you for your time and assistance in this matter!




                                                   Kenedy, TX 78119
                              ~------
                                              John B. Connally U~it




                                 1.
