                                                                                                         WR-81,581-01
                                                                                        COURT OF CRIMINAL APPEALS
                                                                                                            AUSTIN, TEXAS
                                                                                         Transmitted 6/5/2015 8:10:09 AM
                                                                                            Accepted 6/5/2015 9:06:00 AM
                                                                                     Texas Board of Legal Specialization
                                                                                                             ABEL
                                                                                                    Criminal Law     ACOSTA
                                                                                                                  (1991)
                                                                                          Criminal Appellate Law (2011)CLERK


                                                                                         RECEIVED
                                                                                  COURT OF CRIMINAL APPEALS
                                                                                         6/5/2015
                                                                                    ABEL ACOSTA, CLERK

                          To: Hon. Abel Acosta
                        Date: June 5, 2015
                      Subject: Ex parte Demontrell Miller; No. WR-81,581-01

Dear Mr. Acosta:

I have received notice that, on May 20, 2015, the Court of Criminal Appeals denied the Applicant’s motion
for rehearing / reconsideration in the above captioned case. Pursuant to Article 11.071 section 2 (e), I have
caused a motion to be filed in the United States District Court for the Eastern District of Texas, Tyler Division,
a motion requesting the appointing of counsel to represent Mr. Miller in a habeas corpus proceeding under 28
USC 2254, in federal court. A copy of that motion is attached. and I have

                                    Certificate of Compliance and Delivery

This is to certify that: (1) this document, created using WordPerfect™ X7 software, contains 112 words, excluding
those items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies with Rules 9.4 (i)(2)(B) and 9.4 (i)(3),
Tex.R.App.Pro.; and (2) on June 5, 2015, a true and correct copy of the above and foregoing memo was
transmitted via the eService function on the State’s eFiling portal, to Michael J. West (mwest@smith-
county.com), counsel of record for the State of Texas.

                                                     Respectfully submitted,



                                                     ____________________________________
                                                     David A. Schulman
                                                     Attorney at Law
                                                     1801 East 51st Street, Suite 365-474
                                                     Austin, Texas 78723
                                                     Tel. 512-474-4747
                                                     Fax: 512-532-6282
                                                     eMail: zdrdavida@davidschulman.com
                                                     State Bar Card No. 17833400
       Case 6:15-cv-00535 Document 1 Filed 06/04/15 Page 1 of 5 PageID #: 1


            IN THE UNITED STATES DISTRICT COURT
             FOR THE EASTERN DISTRICT OF TEXAS
                       TYLER DIVISION

Demontrell Lamar Miller                      §
Petitioner                                   §
                                             §
vs.                                          §        No. ________________
                                             §        Capital Case
William Stephens, Director                   §
TDCJ-CID                                     §

      Motion for Appointment of Counsel
                          IN FORMA PAUPERIS

TO THE HONORABLE JUDGE OF SAID COURT:

      COMES NOW, Demontrell Lamar Miller (“Petitioner”), by and

through David A. Schulman, his current court-appointed lawyer

(“Movant”), and respectfully requests that new counsel be

appointed, pursuant to 18 USC § 3599(a)(2), to represent him in

a habeas corpus proceeding under 28 USC § 2254. In support of

this request, Petitioner sets forth the following:

                                        I

      Petitioner was charged by indictment with the offense of

capital murder, upon which the State sought the imposition of the

death penalty.        On his plea of “Not Guilty,” Petitioner was

convicted by a jury and a death sentence was imposed. This
        Case 6:15-cv-00535 Document 1 Filed 06/04/15 Page 2 of 5 PageID #: 2


conviction was affirmed on direct appeal. Miller v. State, No.

AP-76,270 (Tex.Cr.App. May 23, 2012).

     Following trial, Petitioner was deemed an indigent in state

district court, and his first application for post-conviction writ of

habeas corpus under Article 11.071, V.A.C.C.P. was timely filed,

by the undersigned counsel, on January 6, 2012. On April 15,

2015, the Court of Criminal Appeals of Texas denied habeas

corpus relief. See Ex parte Miller, No. WR-81,581-01 (Tex.Cr.App.

April 15, 2015). Motion for rehearing was denied on May 20,

2015.

                                         II

     Petitioner is entitled to appointment of counsel pursuant to

18 USC § 3599(a)(2).           He has proceeded as an indigent, with

appointed counsel, throughout state court proceedings.                         He

remains indigent, and has never had his constitutional claims for

relief addressed by a federal court. He is, therefore, entitled to the

assistance of counsel in order to present those claims. See

McFarland v. Scott, 512 U.S. 849, 857-858 (1998).




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      Case 6:15-cv-00535 Document 1 Filed 06/04/15 Page 3 of 5 PageID #: 3


                                      III

    Undersigned counsel does not seek appointment, because he

represented Petitioner in the state habeas corpus proceedings.

Under Martinez v. Ryan, No. 10-1001 (March 20, 2012), Trevino

v. Thaler, No. 11-10189 (February 25, 2013), and Christeson v.

Roper, No. 14-6873 (January 20, 2015), Petitioner has the right

to raise as cause for a procedural default any ineffective assistance

by undersigned counsel in raising or failing to raise in state

habeas corpus proceedings claims of trial counsel's ineffectiveness.

For this reason, undersigned counsel might be conflicted and

should not represent Petitioner in federal habeas corpus

proceedings.

                                      IV

    The Texas Habeas Assistance and Training (“TX HAT”) project,

established by the Defender Services Committee of the Judicial

Conference to consult with and assist counsel appointed in capital

2254 cases in Texas, has been attempting to recruit qualified,

knowledgeable      counsel      to   recommend         to    the    Court    for

appointment. Working their own contacts and with the American

Bar Association's Capital Post-Conviction Representation Project,

they are continuing to search for counsel.                  This motion for
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      Case 6:15-cv-00535 Document 1 Filed 06/04/15 Page 4 of 5 PageID #: 4


appointment has been deferred in the hope that such efforts would

yield a recommendation.           No one has yet agreed to take the

appointment, however, so the motion has been filed. Richard Burr

of TX HAT (dick@burrandwelch.com, 713-628-3391) is the point

person on TX HAT's continuing efforts to find counsel for

Petitioner and will inform the Court of any person or firm willing

and able to take the appointment.

                                  Prayer
    WHEREFORE, PREMISES CONSIDERED, Movant respectfully

requests that the Court appoint new counsel to represent

Petitioner in his habeas corpus proceeding under 28 USC § 2254.

                            Respectfully submitted,


                            ____________________________________
                            David A. Schulman
                            Attorney at Law
                            1801 East 51st Street, Suite 365474
                            Austin, Texas 78723
                            Tel. 512-474-4747
                            Fax: 512-532-6282
                            eMail: zdrdavida@davidschulman.com

                            State Bar Card No. 17833400

                            Attorney for Demontrell Lamar Miller


                                       4
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                      Certificate of Delivery

    This is to certify that a true and correct copy of the above and

foregoing Motion for Appointment of Counsel has been or will be

hand-delivered, mailed postage prepaid, or transmitted via

telecopier, or a portable document format computer document will

be transmitted via eMail, to the office of the Attorney General of

Texas, Capital Litigation Division, Attention: Katherine Hayes

(katherine_hayes@oag.state.tx.us), on June 4, 2015.




                                  ______________________________________
                                  David A. Schulman




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