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’ IN THE COURT OF CRIMINAL APPEALS OF TEXAS FEB 1 7 2015
. No. wR-76,177-02 13MCOURTUFAppé-ALS
EX PARTE MICHAEL CLIFFORD/ § Ol'l Appll€ati©rl fOI` a Wf`it
APPLICANT § of Habeas Corpus in Cause No;

§ , lO-CR-OSOG-C(Z) in the 94th

§ District Court of Nueces County

v_ COUR RECE|VEDIM

APPLICANT's REsPoNSE To sTATE's ToFCR|M|NALApp,:-AL
_SUPPLEMENTAL ANSWER TO APPLICANT'S APPLICATION FOR S

' wRIT oF HABEAS coRPUS FEB 24 2015

Comes now the Applicant, Michael Clifford, pro se, and files this

AheiA;co
response to the State' s suuplemental answer to his applicationsi‘a’Clefk
for writ of habeas corpus in the above- styled and numbered

CaUS€ .

. . -I. NEED FOR EVIDENTIARY_ -HEARI_NG
Applicant asserts the need for an evidentiary hearing in light
of his former counsel's affidavit given as part of the State's
supplemental answer. L. Chris Iles was appointed to represent
`Applicant at his original trial proceedings.

Iles claims, "I reviewed the discovery myself and went over
it in detail with the client for any meritorious.defenses.“ This
claim can be refuted by tangible evidence which can only be
obtained by the Applicant only through order of the Court.
Specifically, the evidence that will impugn this claim are the
vistation logs of the Nueces County jail, which will show that
counsel visited Applicant exactly ONE time prior to trial date/
and for not more than 15 minutes. Indeed, this visit had nothing

. to do with discovery or the facts of the.case, much less a

recitation of "meritorious defenses". Counsel introduced himself,

_2_.

proffered papers to sign (a representation agreement, if
Applicant's memory serves), and left.

Applicant did not see consel again until day of trial, even
though Applicant tried to contact him numerous times by telephone
from the-jail, and even had his wife call counsel's office. These
facts can only be proven by evidentiary hearing, as`a Court order
is necessary to procur phone logs from the jail where the jailer
noted outgoing calls, and where Applicant's-wife would give
testimony supporting this allegation§

Also, internal records kept by the jail should show the
exact time Applicant arrived at Court on day of trial and how
much time elapsed before hearing began. Applicant asserts that
'they will show not more than an hour would have been possible for
such a conference as counsel claims took place. Indeed, the
Applicant did not meet any longer than five minutes with Iles
in this meeting suggesting ONLY the "meritorious defense" of
an open plea that would result in probation. Since the Applicant
was ammenable to probation, the open plea promise made good sense.
IF counsel was aware of any facts of the case, at this point,
he must have gleaned them from sources other than his client, for
no discussion of them had taken place between them before this
time, and Applicant testifies in his affidavit that he saw Iles
looking at the prosecutor's notes AT this hearing to obtain facts.

The plea hearing was concluded, and trial date set. The ONLY
other time applicant saw counsel during his entire representation
(the third of`the "several" Iles claims in affidavit), was at the

vcourt date. There was NO consultation prior to appearance, and

Joanna Clifford, Applicant's wife, could testify that she was
unable to contact Iles and that Applicant had complained to her
about being unable to reach his counsel.

For reasons herein enumerated, and because the required
evidence cannot be procurred by the Applicant operating from
prison as his own legal representative, an evidentiary hearing
is vitally important to protecting the Applicant's constitutional

rights to fair trial.

II. REGARDING ILES' PROMISE OF PROBATION

Iles avers, "Regarding my allegedly promising him a particu-
lar result, I never promised petitioner that I would get him any
particular result.

In the "Statement of the Case" Iles composed on direct aDDeal,
he says, "...defendant entered an open plea of guilty to all v
four counts of the indictment without a plea agreement and
requested deferred adjudication/to the court." This is, in fact,
exactly what happened, under counsel's advice, and it belies
lles' own version of events in the affidavit. Why would deferred
adjudication probation be requested if it hadnlt been discussed
as part of a plea deal or a strategy for trial? And why would
client and counsel go to direct appeal (as they did)`if Iles'
claim is true, and Clifford had been fully apprised of this
possible result? It simply doesn't add up in Iles' version of
events. IF Iles met several times with Clifford and explained
'the discovery, the defesne strategy and meritorious defenses,
then the only possible explanation for an open plea would be

that NONE of these items, including intoxication in mitigation,

was of any hope or use, and throwing himself on the mercy of the
court was his only and best hope. If not for the ill-advisement
of his attorney- the ineffective assistance of his attorney-
Applicant would never have pled guilty, and because of this, his

plea was rendered involuntarily.

III. CLAIMS ON DISCOVERY

As far as State's claims regarding discovery and Iles'
exploration of it goes, the truth of these claims can only be
ascertained by evidentiary hearing. The Court will have to order
the prosecutor's office to turn over records that will show if
and when discovery was reviewed under Nueces County's "open file"
policy.
Pursuant also, to this claim, under article 39.14 of the Texas
Code of Criminal Procedure, Applicant is given the right to
review all records in the district attorney's files of his
case, and Applicanthereinasserts his rights under the "Michael
Morton" doctrine, and asks the Court to ORDER that he be able to
review his file to glean possible evidence in support of these or

future claims.

IV. SUMMARY
Perhaps the true motives of counsel lles are revealed in
a Freudian slip made in his affidavit where he states, "...but
nonetheless [defendant] wanted to plead open without a fee agree-

ment in hopes of getting probation.' The sentence, of course,
should read "PLEA agreement", not "fee agreement", but it might

show that Applicant's counsel wanted to get Clifford "pled out"

_5_

and get him out of the way so he could get on to his next pay-
check. But, regardless of motive, counsel was flagrantly
ineffective, and Applicant hopes the Court will order the necessary

evidence to prove it.

V. PRAYER
Wherefore, premises considered, Applicant asks the Court to
ORDER an evidentiary hearing and to ORDER the D.A.'s file to be

made available for review by the Applicant.

Respectfully Submitted this ll day of February, 2015:

 

Michael Cli§ford/ pro se

TDCJ No. 1638874
Stevenson Unit
1525 FM 766

Cuero, Texas 77954

DECLARATORY OATH

I, Michael Clifford, declarefunderlpéhaffy of ,perjury that the
foregoing is true and correct to the best of my knowledge.

//M¢%/

/
Michael Clifford

'CERTIFICATE`OF SERVICE

I, Michael Clifford, Applicant, certify that a true and correct
copy of this answer was sent via first-class USPS mail to the
following: James Odell, Asst. Dist. Att'y, 90l Leopard, Rm. 2061
Corpus Christi, TX 78401.

Michael Cli§ford

