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_ MAR 03 2015
RoDNEY L.~ woons, ) ‘
Petit:lon_er, ) Ab@ A@@St@, Cl®l`k
vs. ) wRIT No, w89-A4738-P(A)
s'c`ATE oF TEXAS, )
'R`espondent. ) `

 

' PETITtoN§`a"s` "RE?LY' 'ro sram's RE's?oNsE FoR' "
. WRIT OFv ,HABEAS CORPUS `
Comee now, petitioner Rodney L. Woods (Pro-se in this matter) and respectfully
submits this reply to the State's Response of petitioner's state rights here

in Texas, and his United States Constitutional Rights being violated'.
JURISDICTION

' Petitioner 'Wood's, request this Court' to Vacate his Conviction and or
,Sentence in the above captioned case (Criminal) pursuant to the Texas Rules of
Procedure l='or Post-Conviction 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.
If this Co\"_lrt 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, js/Ol»

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

The True Bill Of indictment filed on November 10, 1989, under Cause No~. F-
89A4738-QP - alleges on or about November 3, '1989, petitioner Woods, did
lunlawfully‘, 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 PDSSESSION; of 'a»simulated substance, pursuant to WAIVER OF" 14

JURY/FP.L<)NY PLEA oF cuIL'rY/NoLo coN'rENnERE/mnlc'lmr/INFQRMATION. (see mmIBIT "- `

A, attached 'to and enclosed in the original post-conviction motion and
memorandum of law in support). g l

Also, on January 31, 1990, a True Bill Of lndictment was filed under Cause
No. F-9029380-UP - alleging on or about November 24, 1989, petitioner Woods,
in the County of Dallas and State of \Texas, 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 g\>n-:l.ltyl to said offense under .Cause No.
F-9029380-ur. '

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

in April 1990, a jury found petitioner guilty of said offense contained in the »`

State ' s indictment.

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

Cause No. W89-A4738-P(A):
The state's 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.

/..$~

zl';\‘

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

reaching the merits of petitioner Woods claim[s].

lt 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(1>) and (c). The exhaustion requirement is
designed to "prot.ect the state court's role in the enforcement of federal law
and prevent the disruption of state judicial proceedings." Ro`se 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 (5th Cir. 1997)`;4 l_)_e_t_§:£
'v. Collins, 985 F.2d 789, 795 (5th Cir. 1993); Richardson v. Procunier,"762`F'.'2d
429, 430-31 (5th Cir. 1985).

A habeas corpus petitioner may lsatify this requirement by presenting both
the factual land 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
'* corpus relief in' the convicting court pursuant lto article V §8 of the Texas
Constitution.~. See ~Rodriquez v. Court of Appeals Eight vSv.zpreme vJudicial District, d
769 S.W.an 554, 557 ('l’ex. 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 courtjhas no other
jurisdiction over the matter in controversy).~ ` In theil':"event the district court
denies the habeas petitioner has a right to appeal to the Texas appellate l
courts and to petition the Te_Kas Court of driminal 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 a violation that is constitutional
in -magnitude¢- Reed vs Farley,f' 512 U.~‘S.~ 339 (1994) recogniaed,' an habeas review

is available to check violations of federal laws when the error "qualifies as

""a fundamental defect which inherently results in a complete miscarriage of

josaoo;"'" coming mll,v'.-' uniooa`_sraoeo,- 368 u.~s.= 424,= 428 (1962)`.»-
The Sixth Ame'ndment' guarantees the right to competent counsel not just at l

trial,~ but during all "critical stages of the prosecution.~‘" United States. v.‘

»woao,' aaa u.-:s. 218. 237,- 18 L.' Ed.~ 2d 1149,; 87 s.~‘ cc.» 1926 \(1'967).»

'~"A critical stage is one where potential substantial prejudice to the
defendant`ls right adhere in the ¢;a' confrontation [of the accused by the l
prosecutionj and where counsel"s abilities can help avoid prejudices" ' §p'_l_eg§p_
v_; mabamo, 399 u.-'s; 1, 9,,< W,- 90 s. cc.-'- 1999 <1970)'.~- `

The `U._S. Supreme Court's_ decisions in Lafler v. Coo er,~- 132 S. Ct. 1376,
1387, 1-82 L. Ed. 2d 398 (2012)'and Missouri'v.' F§ye, 132 S. Ct. 1399, 1406, _1_§_2_
L. Ed.» l2d 379 .(2012) emphasized ineffective assistance of counsel claims runs
throughout the plea bargaining process.

Defense counsel - Kenneth weatherspoon, (State Bar No. 21004100) represented
petitioner woods in cause 'No. F'-aQAuaa-QP - unlawful neuvory of A simulated
Controlled Substance. Had counsel - weatherspoon thoroughly investigated the
state's. evidence, states's lstatut~e, the plea agreement and interviewed the
state's witnesses, then a different result would have came about.~ A simulated n
controlled substance is get 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 "simulated" or "limitation" controlled `z__..

..4..

 

substance offense. _Therefore, petitioner Woods respectfully request this court
to apply this definition, rather than a definition based on the plain meaning
of the term "counterfeit." See __M§_gnano Co. v. Hamilton, 292 U.S. 40,v 46-47,; _7_§
L. Ed. 1109, 54 s. cc; 599 <1934§. n `

Texas provides a separate offense for the possession or delivery of a
d simulated controlled substance uNIFoRM comoLLEn summers AcT §405 (1994);
TEXAS HEALTH & SAFETY CODE §482.002. Under Texas law, a "simlated controlled
4snbst'ance" is defined as " a substance that is purported to be a controlled
substance, but is chemically different from the controlled substance it _is
purported to be."' TEXAS HEALTH & SAFETY CODE §482.001_.(4).: Thus, _a simulated
controlled substance’is NUT a controlled substance. 4 n

Under Criminal vLaw 12 §46.4 - Counsel duties in representing a 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 processu The objective standard
in this case, is whether defense counsel - Weatherspoon made such error[s] that
the attorney was ppg functioning as counsel guaranteed by the Sixth Amendment.
Lafler v cooeer, 132 s. cc. _1376, 182 L. Ed. 221 398 (2012) and msuouri v.
._EB,- 132 s. cc. 1399, 182 L. Ea. 2a 379 (2912). n v

The Sixth Amendment right-to-effective-assistance-jof-counsel guarantee
recognised "the obvious truth that the average defendant does _n_o_t_ have the
professional legal skill to protect himself when brought before a tribunal with
power to take his life or liberty." Johnson v. anerbst,‘ 304 U.S. 458, 462-63,
_sa s. cc'. 1019, 82 1.1.v Ed'. 2d 1461 (1938). "of.v alia the rigth shut on accused
person has, the right to be 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.'

 

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

..they are based on counsel' "professional judgment." Stri'ckland _v. Washijton,

 

.~ _`1 .~_""~.:€1_:.`.,_"¢;'_§46`6 »U“.'S. 668» 680 (1984). However, if a purportedly tactical decision is no__t:_'4 `_

 

=':preceded by a reasonable investigation, then it is not sufficiently informed

  
   
 
  
  
  
  

»a.~and not entitled to the deference typically afforded counsel"s choices. See

` 11°.'¥.

“`;'1_searo, 130 s_. cc. at 3265.

  

1` The statutory definition of delivery of a (simul'ate`d) controlled substance

",`._» in ,'l‘exas, was defined by section 481 ‘.';112 `of the "Texas Health and Sefety Code,'*"

 

frencompasses activity that does not fall 'withi`n section definition of "drug

trafficking offense"" §ection 481 112 criminalizes the knowing manuracture,"_

  

1;~':§'€delivery ""or_ possession with intent to deliver a controlled substance. §ee TEXAS

    

-_~`HEALTH & SAFETY DE ANN.: §481“112(a) "Deliver" is defined, in relevant part, n
1 "as "to transfer, actually o_r constructively, to another a controlled substance,
' and it "includes offering to sell a controlled substance. In United States v..;":_. "_

ringonzales, 484 F. 3d 712`,l 714-15 (5th Cir. 2007) held that offering to sell a_ 1.

 

1 controlled substance lies eutside the section definition of "drug trafficking-
ix 'I~

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

distribution or dispensing of a controlled substance (or possession with the

 

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

     
  

"Z `.“'.;inspecting the language of section 481. 002 defense counsel - _weatherspoon,
`:-‘prosecuting district attorney - Shannon Ross and or the trial court judge should "
923 have allowed,- presented or adjudicated petitioner' s cause in question under
~ »the" circumstances 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. w

-..

Wainr-ight, 372 U.S. 335, 83 S. Ct. 7921, 9 L. Ed. 2d 799 (_1963). ,1

 

z~ .» ,

 

_,».`,¢ .4;>‘1, ' r

 

   

(:.

t 1

A reasonably competent attorney will attempt to learn all of the facts of ':'

the case, make an estimate of the likely sentence, and communicate the _“

`result of that analysis. The  American Bar Asso'ciation` (A8A) standards statey
`y"there is no exhaustive list of defense counsel's obligations, [p]revailing:_
7norms of practice a re guides to determining what is reasonable." Stricklend
:v. .Washin ton, 466 U S. 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The pm
‘IV:ABA statndards indicate that "[d]efense counsel should not recommend to
l""`a defendant acceptatnce of a plea unless appropriate investigation and study
"tof the case has been completed. ABA standards for Criminal Justice Pleas

:.of Guilty, Standard 14-3. 2(b) (3rd Ed. 1999). "It is defense counsel's responsiblity

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

lthat go to the defendant's potentials entence, including his or her prior 1
',7record."1d., Commentary on Standard 14-3. 2 (b), p. 123. While counsel has
",;wide latitude to make strategic decisions, "etrategic decisions," "strategic
' jchoices made after less than complete investigation are reasonable precisely

.to the extent that reasonable professional judgments support the limitations

ton investigation." Strickland, 466 U. S. at 690-91. The type of legally erroneous

vadvice petitioner Woods stress--he received from defense counsel defense _¥1'

counsel ~ Weatherspoon is precisely the type _of' nformation 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
.overlooked that petitioner entered into a plea to run concurrent with said
loffense in question, which speaks volumes about whether or Hnot- he would

`.} have accepted a plea, would the prosecution offer a plea nad would the court

'H`F laccept a plea.

o A defendant ’in a criminal proceedings has a right under the Sixth Amendment

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

 

proceedings;., See e;g. §;ll v¢ Lockhart, 474 U;S. 52, 85 106 S. Ct. 366,
83 L. Ed. 2d 203 (1985); See generally'§§§§puri‘v.'FrXe, 132 S. Ct. 1399,
1605, 182 L. Ed. 24_§12 (ZOiZj,W;nd sentencing; see, e.g. Glover v.'United
§§§§§§, 531 U.S. 198, 202*04; 121'5;'Ct._6965 148 L. Ed. 2d 604 (2001);
Memge v. Rheg, 389 U¢S. 128;'134, 88 S. 'CT. 254, 19 L. Ed. 2d 335 (1967). b
_The attorney has an "overaching duty to advocate the defendant's cense."
Strickland, 466 U.S. at 688. l

-The Supreme Court's recent decisions`in McQuigg}n v. Pcrkins, (No. 12¢126)
(S. Ct, May 28, 2013), whico:held actual innocence if proved serves a gateway
through which a petitioner may pass whetherthe impediment is a procedural
bar or expiration of the AEDPA statute of limitations... And Trevino v.
I§§§g§, (No. 11-10189) (S; Ct. May 28, 2013) recognized that "procedurel`
default will not bar a post~conviction~court from`hearing a substantial
claim of ineffective aseistance 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 "uo gggpificant procedural error,” ihcluding~"selecting a sentence
based on clearly erroneous'facts," or failing to adequately explain the
chosen sentence."

Pursuant to United Stetes~v.‘Tucker; 404 U;S. 443, 447, 92 S. Ct.-589,
591-92, 30 L. Ed. 2d 592 (1972), held when errors of this nature are alleged
to have effected the defendant's~sentence,-we review the lower court record
to determine whether-the court actually relied on the inaccurate information
in sentencing the defendant, "A sentencing court demoustrates actual reliance
on misinformation when the court gives"explici mattention' tc it, 'founds'
its senteuce 'at least in part; on it, or gives ' specific consideration'
to the information before imposing the sentence." Id. Egg§§£, 404 U.S. at
444, 447 92 S. Ct. at 590,~592; "

Where a "plain error" is found to erist, a court of appeal hay "exercise

-8-

its discretion to notice a forfeited error;§; only if .,¢ the error seriously
affects the fairness, integrityh‘or'public‘reputationjof the judicial~proceed~
inge." United States'v; Cotton, 535 U.$. 625, 631, 122 S.,Ct. 1781,Ll§§-

L.»Ed. 2d 860.(2002).»' ~~ ' ` bn 4

` It'is rarely, if ever, arguable that an illegal sentence does not conetitue
~plain-error. United STatee“v; Pewlinski, 374'F;3d~§36, 540-41-(7th Cir,'

2006). By its very nature¢'thergjie“an error it is plein, it affects the _
defendant'e aubetantial'rightjand it impugus the reputation of the judicial
proceedinge, dlt'is a fundamental-miscarriage'of'justice~to give a person

an illegal eentence'that‘increase*his~punishment;fjuet"ae it is to convict

an innocent person;"'United'States v.~Paladino,~401-¥;3d`471, 483 (7th`Cir,
20055¢ And by allowing an.illegal sentence "to stand would impugn the fairneas,
integrity, end public reputation of the judicial proceedinga." §i§§g§, 356
F.3d at 767»

In less than four (4} months, defense counsel weatherspoon, had entered
his appearance9 could.not or would not mount a viable defense.for his client,.
counsel failed to call any witnesses (expert~.or."'-‘-oth'er\x'izs.e_)..on_be}ualf\.of>»vl
the defense. A finger print'expert;‘DNA expert or drug analysis expert to
ensure the prosecution'e case can pass the constitutional mustard that the
Sixth-Amendment requiree;“United'States vt Cronic; 466 U.S. ¢:`)!¢8,A 104 S.'
cc. 2039, L. Edv 2d 657-c1984), the supreme court held that "the right»;o
effective assistance of counsel'is~thusy the right of eccueed~to requirel
the prosecution'e case to survive the crucible meaning~of-aduereerial-testing.
When a true edvereariel criminal trial has been conducted-even defense
counsel may havermade demonstrable errors~the~kink to testing envisioned
by the-Sixth Anendment has occurred"~ld;'athOAS;-Strickland, eupra, Independent
levidence,' whether that would come from the baggie alleged to have contained
cocaine,`and-LabjAnelysis regarding whether or not the alleged drug discovered

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

..~~9_-l

 

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 - Weatherspoon,
(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] findings.
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 woods
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

_]_0..

lawyers 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. lhat 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 from then
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 - heatherspoon‘s ill»advice,
lack of investigation and preparation that a different result - a beneficial
one for petitioner would have transpired.

Based upon the above significan and compelling circumstances this Court
should Vacate petitoner's current conviction in this esser 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 attorney, Kenneth Weatherspoon which provides
information needed to dispose of petitioner's claims. First, an attorney
is fallible, capable of not recalling certain details;lHowever, petitioner
woods has submitted EXHIBITS A through F, and the record which is NOT fsllible,
and it does NOT change for anyone. Second, an evidentiary hearing would
xallow this Court to hear from the attorney in question, the petitioners
the prosecution and petitioner's appointed counsel for the purposes of this
hearing and in the interest of justice.

Pstitioner 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 269 2015 l
Res ectfully submitted
/s/ Q/YUF/KM LU 3a
_11_

Rodney Lewis Woods #18898-078

CERTIFlCATE OF SERVICE

I hereby certify that a copy of the foregoing has been forward`tbtthe

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

 

»/S/ pma/wald /Mv@`;d%_.'
Rodney Lest Woods #1889 -078

_12_

