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August 14, 2015
Texas Court of Criminal
Appeals, Clerk of Court
P.O. Box 12308 .
Austin/ Tx 78711-2308

Re: No.,WR-4l,683-02, Ex parte Richard Owen Taylor

Dear Clerk:

Enclosed,please kindly find my Objections to be filed with
the papers in this case. The trial court clerk has Submitted the
record to this court. “

With kindest regards, I am

Very truly yours

  

chard Owen”Taylor
Pro se Applicant

Encl.
`cc: 'Andrea Jacobs

u\,w<xz-<M

NO. WR-4l,683-02

 

IN THE

COURT-OF CRIMINAL APPEALS OF TEXAS

 

Ex parte

Richard Owen Taylor

 

On Successive Application for a Writ of Habeas Corpus
Seeking relief from Final Conviction Under Code of
Criminal Procedure, Article ll.O7; in the Criminal

District Court Number Four of Tarrant County,
Texas, in Cause Number C-4-010509-0577954-B

 

Taylor's Objections to the Trial Court's Adoption
of State's Proposed Memorandum, Findings of Fact
and Conclusions of Law

 

Richard Owen Taylor
TDCJ# 816002

Telford Unit

3899 State Hwy 98
New Boston/ Tx 75570

Pro se Applicant

Date: August 141 2015

To the Honorable Court of Criminal Appeals:

Taylor urges this Court to reject the trial court's findings

of fact,

conclusions of law, and recommendations to dismiss this

case and to remand this case for full consideration on the merits.

The claims have not yet been considered. In deciding whether the

merits of Taylor's successive application should be considered, this

Court is presented with four straightforward issues:

*

,The Supreme Court recently held that the 6th Amendment

guarantees the right to effective assistance of counsel
during a plea consideration and negotiation. In Taylor's
initial application, he alleged that his 40 year plea
bargain was involuntarily made, but did not complain
about counsel's ineffectiveness during the prior 25 year
plea offer because no constitutional rights had attached.
Could Taylor have formulated this argument in his initial

' application and, if not, was counsel' s ineffectiveness

during the prior plea negotiation and consideration
previously resolved?

The Supreme Court recently held that persons who commit
crimes while they are under 18 years of age are not as
morally culpable as similarly disposed adult offenders/

and noted the difficulties for even experts to differentiate
between immaturity/ and the rare juvenile offender whose`
crimes reflect irreperable corruption. This Court has

'retroactively applied this new rule. Was the factual or

legal basis for the claim of newly recognized mitigating
factors unavailable to Taylor when he filed the initial
application?

In Ex parte Tiede, this Court found that a revelation of
suppressed childhood trauma was newly available relevant
scientific evidence. In this case/ Taylor had a recent
revelation of suppressed sexual abuse by his older brother,
who not only orchestrated the aggravated robbery, but who
influenced Taylor into participating. This revelation
occurred some 16 years after his initial application was

'filed.. Does Taylor's successive application contain
' sufficient specific facts establishing that the legal or
-factual basis for his claim was unavailable at the time

he filed his initial application?

Page l

 

* The Supreme Court has recently held that the 8th Amendment
mandates States to provide juveniles with a meanginful
opportunity to return to society once they have demonstrated
maturity and rehabilitation. Does this new rule create
a liberty interest in parole for juvenile offenders?

Argument and Authorities

The Court should consider the merits of this application.

'Article 11.07 § 4 sets out the procedure for filing a successive

application for writ of habeas corpus. The Article provides that:

Tex.

(a)If a subsequent application for writ of habeas corpus is
filed after final disposition of an initial application
challenging the same conviction, a court may not consider

the merits of or grant relief based on subsequent application
unless the application contains sufficient specific facts
establishing that:- F

(1)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 filed under this
article because the factual or legal bisis for the claim was
unavailable on the date the applicant filed the previous
application; or

(2)by a preponderance of the evidence, but for a violation
of the United States Constitution no rational juror could
have found the applicant guilty beyond a reasonable doubt.

(b)For purposes of Subsection (a)(l), a legal basis of a claim
is unavailable on or before a date described by Subsection:
(a)(l) if the legal basis was not recognized by and could not
have been reasonably formulated from a final decision of the
United States Supreme Court, or a court of appeals of the
United States, or a court of appellate jurisdiction of this
state on or before that date.

(c)For purposes of Subsection (a)(l), a factual basis of‘a
claim is unavailable on or before a date described by Sub-
section (a)(l) if the factual basis was not ascertainable
through the exercise of reasonable diligence on or before
that date.

Code Crim. Proc. Ann. art. 11.07, § 4.

Taylor has stated sufficient specific facts establishing that

Page 2

his first and second grounds for relief could not have been raised
in his initial application»
l. The courts did not recognise plea bargaining procedings as

a critical stage requiring effective assistance of counsel

until the U.S. Supreme Court decisions in Lafler and §£y§.

The Sixth Amendment's guarantee of "assistance of counsel" for
the defense of an accused has long been held to mean that a criminal
defendant has a right to the effective assistance of counsel. The
Supreme Court has interpreted this right as extending to all "critical
stages" of a criminal proceeding. In Missouri v. Frye, the Court
examined the issue of whether the Sixth Amendment's guarantee of
effective assistance of counsel encompasses the negotiation and
consideration of plea offers.l

In §£ye, the defendant was accused of driving with a revoked
license - an offense for which Frye had been convicted three times
before. The prosecution extended two alternative plea recommendations.
First, the prosecution proposed a three-year sentence with a guilty
plea to a felony charge including no probation recommendation and
a suggestion that Frye serve ten days "shock time" in jail. Alter-
natively, the prosecution suggested the reduction of Frye's charges
to a misdemeanor and a ninety-day jail sentence if Frye agreed to
plead guilty. Each recommendation was formal and included an

expiration date. Defense counsel allowed both offers to lapse without

communicating either of the prosecution's proposed plea recommendations

` l. 132 S.Ct. 1399 (2012).

Page 3

to Frye. Subsequently, he was sentenced to three years in jail.
After learning of the lapsed plea offers, Frye applied for
relief after the court entered his conviction, alleging ineffective
assistance of counsel. He argued that had he known of the offered
plea recommendations, he would have pleaded guilty to the misdemeanor.
Although the trial court denied the post-conviction relief, the
Missouri court of appeals concluded that defense counsel rendered
sub-par performance and that this sub-par performance resulted in
prejudice to Frye because he pled guilty to a felony rather than
a misdemeanors Thus, the court concluded that Frye had shown a
violation of the Sixth Amendment under the test set forth in

Strickland v. Washington.2

 

The Supreme Court agreed. In holding that the Sixth Amendment
guaranteed effective assistance of counsel extended to the consideration
and negotiation of pleasi the Court recognized the prevalance of plea
bargaining within the criminal justice system. Noting that_95% of
criminal convictions are based upon guilty pleas, the Court determined
that "it is insufficient simply to point to the guarantee of a fair
trial as a backdrop that inoculates any errors in the pretrial
process." Thus, the Court acknowledged that failing to recognize
'the constitutional guarantee of effective assistance of counsel
to the plea bargaining stage would deny the accused the right to

guidance "at the only stage when legal aid and advice would help him."

2. 466 U.S. 668, 686 (1984).

Page 4

The Court outlined the steps a defendant must take to show that
a violation of a defendant's Sixth Amendment right to effective
assistance of counsel has been violated at the plea bargaining stage.
Under the test set forth in Strickland, the accused must prove (1)
that counsel's assistance had been deficient, and (Z)that, as a result
of the deficient assistance, the defendant was prejudiced.

In cases alleging ineffective assistance in the plea bargaining
stage, the Court held that defense counsel has an obligation to
communicate plea offers to the accused and to advise the accused
as to the favorability of the recommendation. Thus, if the attorney
for the accused fails to communicate a plea recommendation to the
accused and "allow[s] the offer to expire without advising the
defendant or allowing him to consider it, defense counsel did not
render the effective assistance the Constitution requires." As a
'result, if a plea recommendation lapses and defense counsel fails
to communicate the offer to his client, his conduct is "deficient"
under the first prong of the Strickland test.

Next, the defendant must show prejudice resulting from the
ineffective assistance of counsel. In order to demonstrate this,
the defendant must show that there is a "reasonable probability"
that they would have accepted the plea recommendation} The defendant
must also show a reasonable probability that the plea would have
been accepted by the court and not withdrawn by the prosecution.

In essence, where counsel fails to communicate a plea recommendation,

the defendant must prove that he would have accepted the plea and

Page 5

not gone to trial/ or that the later plea accepted was less favorable
than the plea initially offered.

In a similar landmark decision, the Supreme Court also held
that criminal defendant's Sixth Amendment right to effective assistance
of counsel during plea negotiations, included when a defendant
rejects a plea bargain because of bad legal advice. In Lafler v.
Cooper, the attorney mistakenly informed the defendant that the state
could not establish intent to murder, as necessary element of its
case, because the defendant had shot the victim below her waist.

Due to his attorney's advice, the defendant rejected a guilty plea
and was later convicted at trial. The defendant was sentenced to
a much longer prison term than the plea offer.

In a five-four majority decision, Justice Kenedy reasoned that
the right to effective counsel extends to the plea bargaining process
because plea bargaining is so pervasive in the justice system. lThe
Court rejected the argument that a fair trial remedies defense
counsel's ineptitude during plea-bargaining, because the negotiation
of a plea is during a "critical stage" of the criminal proceeding
for a defendant.4

The majority focused on the standards for prejudice and the
appropriate remedy.- The Court held that the defendant has the burden
to show that the defendant would have accepted the plea "but for

the ineffective advice of counsel'/ and the sentence would have been

3. 132 S.Ct. 1376 (2012).
4. Id., at 1385.

Page 6

less severe under the plea offer than the judgment imposed.5 The
remedy must neutralize the constitutional violation, without granting
a windfall to the defendant. The Court found that this remedy could
be a trial court's evidentiary hearing and re-sentencing, or in
situations where a mandatory sentence is required, the court could
require the prosecution to reoffer the plea offer. The trial court
could then exercise its discretion in determining whether to vacate
the conviction and to re-sentence the defendant under the plea bargain
or leave the conviction undisturbed.

The legal basis for Ground One was not recognized by and could
not have been reasonably formulated from a final decision of the
United States Supreme Court, or a court of appeals of the United
Statesy or a court of appellate jurisdiction of this state until
the United States Supreme Court decisions in Lafler and §rye.
Consequently, this claim and issue could not have been presented
previously in Taylor's original application prior to its final

disposition on October 151 1999.7

A. The plea bargain issue was not litigated in the
initial application1
In the trial court's findings of fact and conclusions of law
the court found that Ground Number One has been litigated in the
initial application [Findings Nos. 8-10; Conclusions Nos. 7,9,11].

Taylor disagrees and respectfully objects to these findings and

5, Id., at 1385.
6. See Lafler, 132 S.Ct. 1399 (2012) and Frye, 132 S.Ct. 1376 (2012).
7. See Ex parte Taylor, No. WR-41,683-01 (Tex.Crim.App. Oct. 151 1999).

Page 7

conclusions as the habeas record reflects otherwise.

The trial court correctly finds that the initial application
dalleged that counsel was ineffective by causing Taylor's plea to_
the 40 year plea-bargain to be involuntary-based on counsel's
misleading information [Finding No.'5]. Taylor sought to withdraw
his guilty plea to his current 40 year plea bargain term for murder.
The application, however, makes no mention of counsel being ineffective
lduring a prior plea negotiation and consideration of 25 years for
the offense of aggravated robbery. This is because there was no
legal basis from which Taylor could formulate a constitutional claim.

In Ground One Taylor claims, as did §£ye, that his trial counsel/
Ms. Nekhom, failed in her obligation to advise him as to the favora-
bility of the 25-year plea recommendation [or the subsequent 33
year offer], prior:to the expiration of such offer.8 Taylor makes
these statements under oath, also as did §£ye.g Ms. Nekhom was
aware, at the time of the plea offer, that: (1)Taylor and Clark
had signed written statements admitting to the offense, (2)C1ark
was found guilty of capital murder and sentenced to life, (3)Under
-the law of parties, it was highly likely that Taylor would also be
found guilty of capital murder and sentenced to life, (4)probation
would never be an option during plea negotiations, (5)there was
` no available trial strategy, and (6)the Prosecutor's practice is

to begin raising plea offers as the case approaches trial; She

8. See Exhibit A, affidavit of Richard Owen Taylor.
9. Id.

Page 8

further admits in an affidavit that part of her strategic consideration
of the case was "the ultimate goal assigned to me by the Applicant/
i.e.: a reduced punishment for the crimes for which he confessed
his guilty to me."lo Yet, at the only stage when legal aid and
advice would help Taylor, Msf Nekhom provided him absolutely no
guidance, allowing Taylor to reject the 25 year plea offer - while
knowing this would be the most favorable plea offer the State would
offer Taylor.ll

It was not until roughtly five months later when the case was
on the brink of trial that Ms. Nekhom provided guidance at the plea
bargaining stage and advised Taylor to accept a plea offer to murder/
which carried a 40 year sentence.12 Ms. Nekhom summoned Taylor's
family members for help because she had been aware for a long time[
possibly from the very beginning, that this was a plea bargaining
case and that Taylor needed to accept this very last offer.13 If
not, Ms. Nekhom was certain that Taylor would be found guilty of
capital murder and sentenced to life, as did his co-defendant, Clark.14
Indeed, this was a legal conclusion Ms. Nekhom had made long before
the plea offer to 25 years was ever recommended by the prosecution.
Yet, she withheld this information from Taylor until a more severe

plea offer was made by the prosecution.15

lO. See State's Exh. A, page 2.

ll. See Exhibit A, affidavit of Richard Owen Taylor.

12. Id., see also State's Exh. A, page 2.

13. See Exhibit B, affidavit of Patricia Taylor; see also State's Exh.
. A, page 2.

14. See Exhibit A and B, supra.

15. See Exhibit Ar'supra.

Page 9

Taylor accepted the plea offer to murder, with a 40 year sentence
based on the advice by Ms. Nekhom.v But, had Taylor received this
advice when the 25 years was offered, he would have accepted the
offer.l6 Like the claims in §£y§, the claims in this case meet
the two prong test set out in Strickland.

n This issue was never raised or considered by the trial court
'in the initial application, nor was counsel questioned on this legal
matter. l

This Court should therefore consider the merits in Ground One.
2. The courts did not recognize the salient characteristics of

'a juvenile as a mitigating factor until the U.S. Supreme
Court decisions in Graham and Miller, adopted by this Court

in Ex parte Maxwell.

In Roper v. Simmons, the Supreme Court recently recognized that
persons who commit crimes while they are under 18 years of age are
not as morally culpable as similarly disposed adult offenders, and
prohibited the imposition of the death penalty on juvenile offenders}
regardless of the heinousness of their crime.17 As compared to
adults, juveniles have a "lack of maturity and an underdeveloped
sense of responsibility"; they "are more vulnerable or susceptable
to negative influences and outside pressures, including peer
pressure"; and their characters are "not well formed."18 These

salient characteristics mean that "[i]t is difficult even for expert

psychologists to differentiate between immaturity, and the rare

ve

16. See Exhibit A, supra.
17. 125 S.Ct. 1183, 1194 (2005).
18a Idol at 11830

Page 10

juvenile offender whose crime reflects irreperable corruption.

The Supreme Court has gone a step further regarding the imposition
of life sentences on juveniles convicted of committing a non-murder
offense. On May 17, 2010, the Supreme Court issued its decision

in Graham v. Florida.20 Writing for a 5-to-4 majority, Justice

 

Anthony Kenedy called life without parole an "especially harsh
punishment" for a juvenile and said that while states may be permitted
to keep young offenders locked up, they must give defendants "some
meaningful opportunity to obtain release based on demonstrated maturity
and rehabilitation." As such, juveniles could not receive a life
sentence for non-murder offenses. The Graham decision further likened
life without parole for juveniles to the death penalty, thereby evoking
a second line of cases. In those decisions, the Supreme Court has
required sentencing authorities to consider the characteristics of

a defendant and the details of his offense before sentencing him.21

The Supreme Court expanded the Graham decision in its decision

issued in Miller v. Alabama.22 In Miller/ the confluences of the

 

two lines of precedent relied upon in Graham led to the conclusion
that mandatory life without parole for juveniles violates the Eighth
Amendment.23 Such would violate the evolving standards of decency

` 24

that mark the progress of a maturing society.

The rationale underlying the Graham and Miller decisions indicate

19. Id., at 1183.

20. 132 S.Ct. 2011 (2010).
21. Id.‘

22. 132 S-Ct. 2455 (2012).
23. Id.

24. Id.

Page 11

that mitigating factors demonstrating a lessened culpability should
result in a more lenient sentence. Here, Taylor was only 17 years
of age at the time of the offense at issue. Taylor's youth is the
very mitigating factor raised in cases such as Graham and Miller.
This, alone, indicates that Taylor was not as culpable as a similar
situated adult. Taylor had a lack of maturity and an underdeveloped
sense of responsibility. He was more vulnerable or susceptable to
negative influences and outside pressures, especially from his older
brother, Clark. And, Taylor's character was not as well formed as
compared to adults.

In the trial court's findings of fact and conclusions of law,
the court found that the first part of Ground Number Two could have
been raised in his first application [Findings Nos. 11,12,13,14,15,
16,18,19; Conclusions Nos. 7,9,10,12,13]. Taylor disagrees and
nrespectfully objects~because, until Graham and Miller, courts did
not consider the age of the defendant as a mitigating factor - to
this degree - demonstrating a lessened culpability. These salient
characteristics outlined by expert psychologists in these cases
were not available to the courts until the Supreme Court decided‘
these cases-g Moreover, Texas did not consider a defendant 17 years
of age as a juvenile.

Further, this Court held in Ex parte Maxwell, that Miller doesl
apply retroactively to post-conviction challenges.-25 Thus, this ' n

Court has.already determined that the rationale in Graham and Miller

25. See No. AP-76,964 (Tex.Crim.App. 2014).

Page`12

apply to Texas offenders who committed their offense while under

18 years of age; Consequent1y7 the Supreme Court and this Court's
decisions were not available to Taylor prior to the final disposition
of the initial application on October 15, 1999.26 Taylor could

not have previously presented the claims in Ground Two.

This Court should therefore consider the merits in Ground Two.
'3.l This Court should rely on its holdings in Ex parte Tiede to

determine that Taylor's recent revelation of childhood sexual

abuse that had been suppressed for years is considered newly
available relevant scientific evidence.

In Ex parte Tiede, this Court held-that a revelation of childhood
sexual abuse that had been suppressed for years was considered newly
` available relevant scientific evidence.27 This Court further held
that the defendant had suppressed a child history of trauma that
would have lessened his culpability, although he was an adult when
the offense of murder had been committed.28 The Court concluded
that this newly available scientific evidence now explained Tiede's
state of mind at the time of the offense, and granted him habeas
relief in light of this new evidence.29

Like the claims in Ex parte Tiede, Taylor's mental-health
history that has now come to light should be considered by the Court

in determining a more appropriate sentence - especially under the

rationale in Graham and Miller.30 Taylor's affidavit/ which details

26. See Ex parte Taylor, No. WR-41,683-01 (Tex.Crim.App. Oct. 15, 1999).

27. See Ex parte Tiede, No. WR-8l,532-Ol (Tex.Crim.App. Nov. 26, 2014).
28. Id., concurring opinion.

29. Id. _

30. See Exhibit C, affidavit of Richard Owen Taylor; see also Graham,

supra and Miller/ supra.

Page 13

sufficient specific facts of his childhood sexual abuse by his older
brother, Charles Clark, who also orchestrated the aggravated`robbery
and influenced Taylor into participating/ is uncontraverted by the
State.31

Taylor does concede that he has not been examined by an expert.
But a review of the details indicates that, if proven true by an
expert psychologist, would provide mitigating evidence as to Taylor's
mental state at the time he participated in the aggravated robbery/
where Clark shot and killed the clerk after a struggle over the
weapon ensued. Taylor should therefore be examined by an expert;

Moreover, Taylor's uncontraverted affidavit states that he
recently had this revelation of childhood sexual abuse by Clark
which he had suppressed for several years. This revelation came
well after the final disposition of Taylor's initial application
on october 15, 1999.32

This Court should therefore consider the merits in Ground Two.
B. The U.S. Supreme Court has created a liberty interest in

parole for juvenile offenders.

-As previously discussed/ the Supreme Court in Graham and Miller
held that states may lock up defendants who commit heineous offenses
as a juvenile, but they must give them some meaningful opportunity

to obtain release based on demonstrated maturity and rehabilitation

in order to avoid violating the 8th Amendment.33 These decisions

'31. ' See Exhibit C, affidavit of Richard Owen Taylor.
32. See Ex parte Taylor, No. WR-4l,683-Ol (Tex.Crim;App. Oct. 15, 1999).
33. See 130 S.Ct~ 2011 and 132 S.Ct. 2455.

Page 14

ultimately created a liberty interest in parole for juvenile
offenders. The trial court has ignored these Supreme Court holdings
and found that Taylor has no constitutional right in parole and
therefore cannot raise the issue on habeas [Findings No. 16]. Taylor
respectfully objects.

It is undisputed that Taylor was 17 years of age when this
offense was committed. Taylor is now 41 years of age. He has been
eligible for release on parole since August 18, 2007. The Parole
Board has continued to deny Taylor parole, making him ineligible
for parole until he has served 20 years in May, 2017; a total of
10 years of parole denials. These denials, however, are based on
the nature of the offense, a factor Taylor is unable to change.34

The Parole Board refuses to consider Taylor's demonstrated
maturity and rehabilitation. Taylor has demonstrated maturity and
rehabilitation by completing all available TDCJ Courses, including
Cognitive Intervention and Parenting. He has twice completed Voyager,
ya life changes class. He has mentored for the school system, and
has successfully tutored several inmates to a GED certificate.>

He frequently attends AA/NA and many other support groups. He has
no record of violent offenses in his now 18 years of incarceration.
He has been without disciplinary, minor or major, for several years,
while he has maintained the highest level of class earning status

under his circumstances. He has asuitable residence and gainful

34. See Exhibit D, affidavit of Richard Owen Taylor .

Page 15

,._A:\|

 

employment upon his release. This is the type of demonstrated

maturity and rehabilitation the Supreme_Court spoke about in Graham

and Miller.35

The Parole Board is violating Taylor's rights under the 8th
Amendment by refusing to grant him parole after he has demonstrated
maturity and rehabilitation. The Parole Board's most recent denial

occurred on May 27, 2015, which demonstrates it denied Taylor because

of the nature of the offense. The Supreme Court did not require

vstates to make parole available to juvenile offenders, while allowing

`the states to deny the same juvenile offender parole indefinitely.

The Court should therefore consider the merits in Ground Three.

Conclusion

The four questions presented should be answered in a straight-

*Lforward fashion:

Fm~` "* 'No, Taylor could not have formulated the argument that

trial counsel was ineffective during the 25 year plea
negotiation and consideration because, at the time of

the initial filing, the United States Supreme Court

had not yet considered the plea bargaining stage as
"critical" requiring the right to counsel. And/ no, this
issue has not been previously litigated because it was
never presented to the court.

* Yes, the mitigating factors recognized in Graham and Miller
were unavailable to Taylor and the courts when Taylor filed
his initial application. Taylor could not have formulated
his argument in Ground Two.` 4 ,

* Yes, Taylor's application contains sufficient specificj
facts establishing that the legal or factual basis for

Ground Two was unavailable at the time he filed his
initial application.

v35. See 130 S.Ct. 2011 and 132 S.Ct. 2455.

Page 16_

* Yes1 the United States Supreme Court holdings in Graham
.and Miller create a liberty interest in parole for juvenile

offenders. v

~Taylor asks the Court to remand this case to the trial court
for consideration of the merits. He further asks the Court to order
the below court to appoint counsel and an expert so that the claims
may be fully developed and a sufficient record presented to this
Court for consideration.

Taylor asks the Court to direct the Texas Board of Pardons
and Paroles to grant him release on parole.

Taylor prays for general relief.

Respectfully submitted1

/Z-

i§hard Owen T
TDCJ# 8160021 Telford
3899 State Hwy 98
New Boston1 Tx 75570

Pro se Applicant

Certificate of Service

I certify that a true copy of this objection was served on
the District Attorney's Office by placing the same in the prison
mailing system properly posted and addressed to Andrea Jacobs1
Assistant District Attorney, 401 W. Belknap1 Ft. Worthr Texas1

76196 on August 141 2015.
/Kichard Owen Ta;;;;;z”_

 

Page 17

