Office of the Clerk
Couxt o!· Appeals
Fourth
 '     Collrt of Appeals
Distritt of Texas
Sari Antonio


Re: Application for a Writ of Mandamus
    Cause No. aa-02-o;n 79    Appeals No. 04-17-00614-CR
    79th Judicial District
    Brooks County, Texas


Dear Clerk:
              Enclosed please find my original Application for a
Writ of Mandamus. Please bring it to this Court's att�ntj_on
an<:i by doing Sarne, please send me an ackhowledgetnent that my
appiication has been received and is being filed. Enclo$ed
please also find a self-addressed stamped envelope for your
convenience.
   ff there is any problem with my application and f.iling,
please let me know and have that information so it can be
corrected.
    Thanks in a,dvance for your time and kinds assistance
shown to me in the above mentioned request.




                                 CISNEROS #40178-079
                    USP-VICTORVILL�/P.O.   aox   3900
                    ADELANTO, CALIFORNIA 92301
                                                            Page 1 of 12


                     COURT OF APPEALS

          FOURTH COURT OF APPEALS DISTRICT OF TEXAS

                         SAN ANTONIO

                  Appeals No. 04-17-00614-CR

                  Cause No. 88-02-02179

                  79th Judicial District Court

                  Brooks County, Texas


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                                                      rn        -O        >c~r,
                JUAN GABRIEL CISNEROS, Relator                  ^
                                                                tn    ■
                                                      --I
                                                                          z,LiT-
                              VS.


     BROOKS COUNTY DISTRICT CLERK, Respondent          h, ^     tn
                                                                cn




            APPLICATION FOR A WRIT OF MANDAMUS




TO THE HONORABLE JUDGE OF SAID COURT:

     COMES NOW Juan Gabriel Cisneros, the Relator acting in
pro-Se, and respectfully submits this his Application for a

Writ of Mandamus, and in support thereof, would show this

Honorable Court as follows:

I. OVERVIEW OF RELEVANT FACTS


    Because the Application for Writ of Habeas Corpus

Pursuant to Texas Code of Criminal Procedure, Article 11.08,
along with the Financial Statement Affidavit and Request to

Proceed In Forma Pauperis, attached hereto and incorporated
herein for purposes hereof as Exhibit A, provides a detailed

background with respect to the relevant facts, that

background is not repeated here. However, an overview of the

relevant facts -which is taken largely from the Background
                                                           Page 2 of 12


Facts Section of the Application- is piroyided here.

   The above-named Relator, Juan Gabriel Cisheros states and

asserts he is being unlawfully restrained of his personal

liberty by The State of Texas, County of Brooks, in violation

of State and Federal Constitutions by reason of Ineffective

Assistance of Counsel, when Counsel abandoned on February 27,

1989, a valid claim of Innocence, and instead, coerced and
induced the Relator to accept a plea offer to a possession of

marijuana charge, in which he would be placed on two (2)

years deferred adjudication probation, which if he

successfully completed, the district judge would sign an

dismissal order that would be the equivalent to an acquittal

of the charges. The effect of which would be as if Relator

was found innocent of the crime. Relator accepted the plea

offer and plead guilty based solely upon counsel's

affirmative information and advice and successfully completed

the two year deferred adjudication probation and was

discharged oh or about April 29/ 1991.

   However, on June 19, 1995, Relator was convicted in

federal court of conspiracy to possess with intent to

distribute marijuana and sentenced to mandatory life without

release, as a result of the two (2) year deferred

adjudication probation, which was used as the basis of a

prior offense for purposes of enhancement, contrary to what

trial counsel affirmatively assured Relator.

  Relator states, and the state court records show, that he

has diligently sought relief -incorrectly, due to pro se

status and lack of Texas Code of Criminal Procedure Books and

Case law in the federal system- under Article 11.07 of the
                                                           Page 3 of 12


Texas Code of Criminal Procedure. For several years,
commencing on about the year 2000 through 2010, Relator filed

several applications for writ of habeas corpus pursuant to

Article 11.07, receiving no response from the trial court.

See First Docket Entry File in Criminal Case 88-02-02179,

attached hereto and incorporated herein for purposes hereof

as Exhibit B; Also see Unsworn Declaration, attached hereto

and incorporated herein for purposes hereof as Exhibit C.

   Relator even filed an Application for Writ of Mandamus oh

April 2, 2003, to the Texas Court of Criminal Appeals. The

Court of Criminal Appeals ordered the district clerk to

respond- On May 16, 2003, the district clerk responded by
stating no. "Application for Writ of Habeas Corpus had been
filed and therefore no action could be taken." This response

by the district clerk is clearly contradicted by the state

court records. See Exhibit B; also see Court of Criminal

Appeals No. 39,693-03.

    However, Relator without assistance of counsel and

proceeding pro-se, filed in 2008, incorrect vehicle, another

Application for writ of Habeas Corpus under Article 11.07 of

Texas Code of Criminal Procedure. This Application was

dismissed on about October 3, 2008 for want of jurisdiction,

because community supervision was not revoked. See Second

Docket Entry File in Criminal Case 88-02-02179, attached

hereto and iheorporated herein for purposes hereof as Exhibit

D, at Docket No. 41.

   Thereafter, with the assistance of habeas counsel Rudy

Wattiez, of San Antonio, Texas, on June 14, 2010, Relator

filed an Application for Writ of Habeas Corpus Pursuant to
                                                          Page 4 of 12


Article 11.08 of the Texas Code of Criminal Procedure, the

correct vehicle in this deferred adjudication case. Id., at

Docket Entry No. 42; Also see Donovan v. State, 68 S.W. 3d

633, 636 (Tex. Crifn. App. 2002).

    In this Application, Relator alleged that his guilty plea
was obtained by inducement, in that it was not voluntarily

asserted nor was the full understanding of the consequences
known to Relator at the time of the agreement.

    Relator was denied effective assistance of counsel,
Eugenio A. Soils, Jr., failed to familiarize himself with the

facts and law pertaining to the very issues raised in that

application. Relator's retained counsel induced him to plead
guilty by misleading him about the consequences of accepting
deferred adjudication probation. Furthermore, retained

counsel mislead and unlawfully induced Relator to accept a

plea agreement for deferred adjudication probation, by

misinforming Relator, if plead guilty and accepted the

deferred adjudication probation, and his probation was not

revoked, the judge would sign an order of dismissal of the
underlying crime, the effect of which would be as if the

crime had never occurred and the offense on his record would

be permahehtly removed. See Sworn Affidavit of Eugenio A.

Soils, Jr., (Exhibit 3 to Article 11.08 Application, which is
attached hereto and incorporated herein for purposes hereof

as Exhibit A).

  An evidentiary hearing was held on this Application on

July 25, 2011, and eventually denied on the 26th day of July

2011. See Second Docket Entry File in Criminal Case 88-02-
                                I
02179, attached hereto and incorporated herein for purposes
                                                         Page 5 of 12


hereof as Exhibit D, at Docket No. 68.

     Writ of habeas counsel Rudy Wattiez, filed an untimely
notice of appeal to the denial, id. at Docket Entry No. 82,

and eventually the appeal was dismissed for want of

jurisdiction. See Gourt of Appeals Order of February 8, 2012,

attached hereto and incorporated herein for purposes hereof

as Exhibit E; also see Exhibit D, at Docket No. 104.

    On October 3, 2016, Relator filed another -the

Application referred to in this Application for a Writ of

Mandamus- Application under Article 11.08 in the trial court.

Relator now alleges in the instant Application for Writ of

Habeas Corpus Pursuant to Article 11.08 of Texas Code of

Criminal Procedure, that he was denied effective assistance

of counsel on a different ground.

    Given that Relator had previously asked his habeas

counsel about this unraised claim, and had informed him to

raise it in the initial application Under Article 11.08, but

was told by habeas counsel Rudy Wattiez, that it was not

necessary. That the ineffective assistance of counsel claim

already raised in the application -mentioned above- was more

than enough to get a reversal of the conviction. Relator

otherwise did not doubt his habeas coiinsel's representation.

Relator is entitled to bring this his subsequent application

for Writ of Habeas Corpus Pursuant to Article 11.08 of Texas

Code of criminal Procedure.

   Article 11.08 of Texas Code of Criminal Procedure does

not bar Relator from filing a subsequent application. Article

11.08 does hot have a subsequent application restriction as

Article 11.07, since the statutes set out two very different
                                                           Page 6 of 12


procedures.

  Moreover, Relator presents a claim of ineffective

assistance of trial counsel that was not presented to the

habeas court in the initial collateral review proceedings

and, perhaps, is procedurally barred because of the
ineffectiveness of his original state habeas counsel. Relator

seeks to challenge his guilty plea, specifically, Relator

asserts that he should be allowed to pursue his claim that he

was provided with ineffective assistance of habeas counsel
during initial collateral review proceedings in the habeas
court, relying upon the United States Supreme Court in
Martinez v. Ryan/ 132 S.Ct. 1309, 182 L.Ed 2d 272 (2012), and
Trevino v. Thaler, 133 S,Ct, 1911, 185 L.Ed 2d 1044 (2013).

Relator moved for habeas relief and seeks an "opportunity to

challenge state habeas counsel's effectiveness." Relator
contends that under Martinez and Trevino, he is entitled to

present and have the trial court consider the evidence that
was not submitted to the state habeas court due to state

habeas counsel's failures.

    The evidence that Relator presented to the trial court is

that before his guilty plea arraignment hearing of February

27, 1989, Relator informed trial counsel, Eugenio A. Soils,

Jr., that he was innocent of the Crime he was charged with,

that he took the blame of the drugs due to coercion on part
of his mother, to protect her from going to jail. Trial
counsel Eugenio A. Soils, Jr., informed Relator that he had
already reviewed the evidence against him and that the
district attorney had offered a plea bargain. That, since he
[Relator] had accepted responsibility for the drugs found in
                                                          Page 7 of 12


the truck, he had no other choice but to plead guilty. That

the offer the district attorney had extended if completed,

would be if he was never charged.

  Relator filed his Article 11.08 Application on October 3,

2016, and to this date the trial court nor the State of

Texas, have filed a response or any document, despite

Relator's filing of a Motion to Supplement Application with

Recent U.S. Supreme Court Authority in Jae Lee   v. U.S., No.

16-327, on July 12, 2017. And a Motion for Appointment of
Counsel.

II. PROCEEDINGS UNDER THE WRIT

   Article 11.10 states: When motion has been made to a

judge under the circumstances set forth in the two preceding
Articles [11.08 and 11.09], he shall appoint a time when he

will examine the cause of the applicant, and issue the writ

returnable at that time, in the county where the offense is

charged in the indictment or information to have been

committed. He shall also specify some place in the county

where he will hear the motion. Art. 11.10 of Tex. Code of

Crim. Prbc. The trial court has failed to comply with this

Articles mandate. Relator'S Article 11.08 Application has

been Sitting in the trial court for almost a year now.

    Furthermore, Article 11.15 mandates that "The writ of

habeas corpus shall be granted without delay by the judge or
court receiving the petition, unless It be manifest from the
petition itself, or some documents annexed to it, that the
party is entitled to no relief whatever." Art. 11.15 of Tex.
Code of Crim. P.

    The above cited Articles are very specific, that the
                                                           Page 8 of 12

trial court shall act accordingly.

    Relator's Article 11.08 Application presents a colorable
claim that entitles him to the habeas relief sought before
the trial court.

    Relator lacks an adequate remedy at law -Article 11.07

inapplicable to deferred adjudication offenses, see Ex Parte

Torres, 943 S.W. 2d 469, 472 (Tex. Crim. App. 1997)- because
                     Y


his petition to the trial court for habeas relief are simply
ignored and/or not responded to. Relator is presently serving
a life sentence without release in the federal system as a
result of the State's prior deferred adjudication -two (2)
year- probation, that was obtained in violation of his

constitutional rights.

III. DENIAL OF DUE PROCESS

   The longer the trial court keeps delaying the Article
11.08 Application now before it, the longer due process
fights to Relator is being delayed.

IV. DEFERRED ADJUDICATION PROBATION

    Under Texas law, deferred adjudication -as in the present
case- is a process intended to give selected offenders an

opportunity to avoid the stigma inherent in the entry of a
judgment of guilt for a felony offense by postponing the
actual determination of guilty for a period of years during
which a defendant who complies with the conditions specified
by the sentencing judge during that term can ultimately
receive a dismissal of the indictment or information against
him. See Ex Parte Laday, 594 S.W. 2d 102, 104 (Tex. Ct. Crim.

App. 1980)'. If, however, the defendant fails to comply with
the conditions of the deferred adjudication term, a judge can
                                                           Page 9 of 12


revoke the term of deferred adjudication, enter an order

adjudicating the defendant's guilt, and fix the sentence to

be served by the defendant. See Dahlkoetter v. State, 628

S.W. 2d 255, 257-58 (Tex. Ct. App. 1982).

   In the instant case, Relator successfully complied with

the conditions specified by the sentencing judge. Thereafter,

the sentencing judge submitted an ORDER DISCHARGING DEFENDANT

FROM DEFERRED ADJUDICATION PROBATION. See Sentencing Judge

Discharging Order, attached hereto and incorporated herein

for purposes hereof as Exhibit F. However, the federal system

enhanced Relator's sentence in a separate case to life

without release as a result of the two year deferred

adjudication probation, notwithstanding the fact that Relator

was discharged from said probation.

    Relator has been incarcerated for over 22 years now, but

for the deferred adjudication offense, he would have been

released long time ago.

   Relator was coerced into accepting the State's plea offer

to a possession of marijuana charge, in which he would be

placed on two (2) years deferred adjudication probation,

which if he successfully completed, the district judge would

sign an dismissal order-that would be the equivalent to an

acquittal of the charges. The effect of which would be as if

Relator was found innocent of the crime. Relator accepted the

plea offer and plead guilty based solely upon counsel's

affirmative information and advice and successfully completed

the two year deferred adjudication probation and was

discharged on or about April 29, 1991.

   However, the indictment was not dismissed nor the charges
                                                         Page 10 of 12


dropped and Relatdr was ultimately sentenced in federal court

to life without release as a result of the deferred

adjudication probation offense, that was obtained in

violation of his constitutional rights.

V. APPLICATION FOR A WRIT OF MANDAMUS RELIEF

  The application for a writ of mandamus is used to confine

an inferior court to a lawful exercise of its prescribed

jurisdiction or to compel it to exercise its authority when

it is its duty to do so.

  In Chapman v. Evans, 744 S.W. 2d 133, 138 (Tex. Crim. App.

1988), the relator sought -through a. writ of mandamus- to

have the trial court either set for trial or dismiss a

pending indictment for an offense unrelated to that for which

he was presently incarcerated. The Court of Criminal Appeals

granted mandamus relief.

   Similarly, in Thomas v. Stevenson, 516 S.W. 2d 845 (Tex.

Crim. App. 1978), the relator, serving a sentence of life

imprisonment for attempted murder, had detainers placed upon
him for charges of burglary of a habitation. He filed several

request with the trial court to obtain a speedy trial, but

received no response. The Court of Crimina.1 Appeals granted
mandainus relief in that case as well.

    Relator is serving a sentence of life without parole for

a marijuana drug offense in the federal system> as a result

of the State's prior two year deferred adjudication probation

offense -which he successfully completed- that was obtained

in violation of his constitutional rights. The trial court

has ignored the Article 11.08 Application filed by Relator on
October 3, 2016, and its procedures for almost a year now.
                                                           Page 11 Of 12


  This Court can either grant the relief sought in Relator's

habeas corpus application, or in the alternative, order the
State of Texas, County of Brooks, to respond to the claim

raised in the Application.

VI. CONCLUSION                     [

   Relator asks this Honorable Court for mandamus relief,

either by ordering the district court to act on his

application for writ of habeas corpus filed on October 3,

2016, or grant the relief sought in his habeas corpus

application. In the alternative, this Court can dismiss the
charges and/or indictment pursuant to the order discharging
Relator from deferred adjudication probation.

VI. PRAYER

    Relator states that he is entitled to mandamus relief

because of the trial court's failure to follow the writ of

habeas corpus proceedings.
    WHEREFORE, PREMISES CONSIDERED, Juan Gabriel Cisneros

prays that the Court grants mandamus relief.

VII. VERIFICATION

   I, Juan Gabriel Cisneros "Relator", declare under the

penalty of perjury that the foregoing is true and correct to
the best of his knowledge, understanding and belief.

Executed on this the 19th day of September, 2017.

                                  iESPECTFULLY SUBMITTED




                             ^ ^AN GABRIEL CISNEROS
                                 REG. NO. 40178-079


                                 USP-VICTORVILLE

                                 P.O. BOX 3900^^.,..
                                 ADELANTO, CA 92301
                                                        Page 12 of 12




                   CERTIFICATE OF SERVICE




    I, Juan Gabriel Cisneros, certify that a true and correct

Copy of the foregoing Application for a Writ of Mandamus was

sent, via first class mail, to: Noe Guerra, Brooks County

District Clerk, 79th Judicial District Court, P.O.Box 534,

Falfurrias, Texas 78355, on this the 19th day of September,

2017.




                                juAn Gabriel cisneros

                                REG. NO. 40178-079


                                USP-VICTORVILLE

                                P.O. BOX 3900


                                ADELANTO, CALIFORNIA 92301
                                                                  K\(nC)   rued   /..V
                                                               PA'Il 1            ^      W
                                                                     OCT    3 2016
                   Cause   No. 88-02-02179




 JUAN GABRIEL CISNEROS )
                                        IN THE DISTRICT COURT

                                        79th judicial DISTRICT
 VS.
                                        BROOKS COUNTY, TEXAS

THE STATE OF TEXA^




        APPLICATION FOR WRIT OF HABEAS CORPUS PURSUANT
   TO TEXAS CODE OF CRIMINAL PROCEDURE. ARTICLE 11.08


        NOW COMES, Juan Gabriel Cisneros (hereinafter

"Applicant"), proGeeding     pro-se, and makes this Application
for Writ of    Habeas   Corpus       and for good cause shows the

following:                       '

                                      I.            .   ,

   The above-named Applicant, Juan Gabriel Cisneros states

and asserts he is being unlawfully restrained of his personal
liberty by Respondent, the State of Texas, in violation of

State and Federal Constitutions by reason of Ineffective

Assistance of Counsel, when Counsel abandoned on February 21,

198-9 a valid claim of Innocence, and instead. Coerced the

Applicant to plead guilty to a possession of marihuana

charge, in    which he was placed on two (2) years deferred

adjudication probation and discharged on or about April 29,

1991.


   However, on June 19, 1995 Applicant was convicted of

conspiracy to possess with intent to distribute marihuana in

violation of 21, U.S.C. Section        841 (a), and sentenced to

mandatory life without release under Section 841(b)(1)(A), aS
                                                      PAGE 2 OF 22



 a result of the two (2) year deferred adjudication probation,
 which was used     as the basis of a prior offense for purposes
 of enhancement and    the subsequent sentence of mandatory life
 without release.


                                    II-

     This Court has jurisdiction pursuant to Article 11.08 of

the Texas Code of Criminal Procedure. Also see Donovan v.

State, 68 S.W. 3d 633, 636 (Tex. Crim. App. 2002).

                                    Ill.


     Applicant has filed a previous application pro-se on
about August 5, 2008, pursuant to Article 11.07, which was
dismissed on about October 3, 2008 for want of       jurisdiction,
because community supervision was not revoked. (See Docket

Entry 4.1) .

     Applicant filed a previous application with the aid of

habeas   counsel on about June      14, 20lO, pursuant to Article
11.08, the correct vehicle in this deferred adjudication
case. (See Docket Entry      42).

    In   this application.    Applicant alleged that his guilty
plea was obtained by inducement, in that it was not

voluntarily asserted nor was the full understanding of the
consequences known to Applicant at the      time of the

agreement.

    Applicant was denied effective assistance of counsel,
Eugenio A. Soils, Jr., failed to familiarize himself with the
facts and law pertaining to the very issues      raised in that
application. Applicant's retained counsel induced him to

plead guilty by misleading applicant about the consequences
of accepting deferred adjudication probation. Furthermore,
                                                     PAGE 3 OF 22



retained counsel mislead and unlawfully induced applicant to

accept a plea agreement for deferred adjudication probation,

by misinforming applicant, if plead guilty and accepted the

deferred adjudication probation, and his    probation was not

revoked, the judge would sign an order of dismissal of the

underlying Crime, the effect of which would be as if the

crime had never occurred and the offense on his record would

be permanently removed.

      An evidentiary hearing was held on this application on

July 25, 2011, and eventually denied on the 26th      day of July
 2011. (See Docket Entry 68).

      writ of habeas counsel, Rudy Wattiez filed an untimely

notice of appeal (See-Docket Entry 82), and eventually the

appeal was dismi&sed for want of jurisdiction., (See Docket
  )

Entry 104).

                                  IV.


      Applicant alleges he was denied effective assistance of

trial counsel on a different ground.

      Given that applicant had previously asked his habeas
counsel about this unraised claim, and had informed him to

raise it in the initial application under article 11.08, but

was told by habeas counsel that it was not necessary.         That

the ineffective   assistance of counsel claim already raised

in the application was more than enough to get a reversal of

the conviction.   Applicant otherwise did not doubt     his

habeas counsel's representation. Applicant is entitled to

bring his subsequent application for writ , of habeas    corpus

pursuant to Article   11.08   of the Texas Code of   Criminal

Procedure.
                                                        PAGE 4 OF 22



        Article 11.08 of the Texas Code of    Criminal Procedure

does not bar an applicant from filing a subsequent

application under     Article 11.08.

      Moreover, applicant presents a claim of ineffective

assistance of trial counsel that       was not presented to the

habeas court in the initial collateral review proceedings

and, perhaps, is procedurally       barred because of    the

ineffectiveness of his original state habeas counsel.

Applicant seeks     to challenge his guilty plea, specifically,

applicant asserts that he should be allowed to pursue his

claim that     he was provided with ineffective assistance of

habeas counsel     during initial review collateral proceedings

in the habeas court, relying upon the United States Supreme

Court in Martinez v. Ryan, 132 S.Ct. 1309, 182 L.Ed 2d 272

(2012), and Trevino v. Thaler, 133 S.Ct. 1911, 185 L.Ed 2d

'1044 (2013). Applicant moves    for habeas relief and seeks      an

 "opportunity to challenge state habeas counsel's
effectiveness." Applicant contends that under Martinez and

Trevino, he is     entitled to present and have   the trial

court   consider the evidence    that was not submitted to the

state habea^s court due to state habeas counsel's failures.

      The evidence that applicant    would like to present to the

court is     that before his plea arraignment hearing of

February 27,, 1989,     applicant informed trial counsel,

Eugenie A.    Solis, Jr., that he was innocent of the crime he

was charged with, that he took the blame of the drugs due to
coercion on part of his mother, to protect her from going to

jail. Trial counsel Eugenio Solis, informed applicant that he

had   already reviewed the evidence against him and that the
                                                               PAGE 5 OF 22



district attorney      had    offered a plea       bargain. That, since

he had already accepted responsibility             for the drugs found

in the truck, he h^d no other choice but to plead            guilty.

That the offer     the district attorney had extended if

completed, would be if he was never charged.

                                    V.

                             BACKGROUND    FACTS


       On about January 15, 1988, while       driving a pick-up truck

belonging to.    his   father (since deceased), applicant and his

mother, Maria Martha Cisneros,       driving alongside him as a

passenger, were     stopped at a Department of Public Safety

traffic checkpoint, at which time the vehicle was searched

without applicant's or his mother's consent. The            vehicle was

 determined to have several pounds of marihuana hidden in the

engine compartment.

       Applicant's mother    told him to take responsibility for

the marihuana found in the pick-up truck, and to stay quiet

and don't say that she knew of the marihuana.            That for him

not to worry, that     she would hire an attorney to get him out

of jail    and take care of the problem.       That everything        was

going to    be alright. Applicant        told his mother    that he

didn't want to    take responsibility for something he knew

nothing about. Applicant's mother told him that he had to

take    responsibility for her, because she was his mother and

he had to protect her from going to jail. That he was young

and wouldn't    get that     much time in jail, compared       to her

and her age. That anyhow he had to take responsibility for

her because she was his mother. Based upon this threats            and

coercion, applicant accepted responsibility for the marihuana
                                                         PAGE 6 OF 22




found in the pick-up truck and gave a false       statement    to

the State Trooper. See Sworn Affidavit of Juan Gabriel

Cisneros, attached hereto and incorporated herein       for

purpose hereof as Exhibit 1; Also see Sworn Affidavit of

Maria Martha Gisneros, attached hereto and incorporated

herein for purpose hereof as Exhibit 2.

       The applicant was placed under arrest    at that time for

possession of marihuana, at the time of arrest, applicant was

young and    did hot have any criminal record associated with

illegal drugs. Id.

       Applicant's mother retained attorney     Eugenio A. Sblis,

Jr., to represent applicant on the pending criminal case.

Attorney Eugenio A. Solis, Jr., got applicant out of jail on

bond. Id.


       Before the plea arraignment hearing, applicant informed

attorney Eugenio A. Solis, Jr., that he was innocent of the

crime. That he took the blame just to protect his mother,

that his mother had told him to stay quiet and for him hot to

say She knew of the marihuana.    That she     would hire an

attorney and get him out of jail. That the attorney       would

take care of the problem and that    everything would be

alright. Id.

       Applicant further informed attorney, Eugenio    A. Solis,

Jr., that he refused to take the blame at first, and told

his mother that    he didn't want to take    responsibility for

something he knew nothing about. But that his mother had told

him that he had to take responsibility, because she was his

mother and, he had to protect her from going to jail. That he

 was    young and wouldn't get that much time in jail, compared
                                                     PAGE 7 OF 22



t:o her and her age. That anyhow he had    to accept

responsibility because she was his mother.

      That based upon this threats and coercion, applicant

accepted culpability for the marihuana found in the vehicle.

Id.

      Applicant was determined to have a jury trial which would

prove his innocence. Applicant continues to deny he had any

knowledge of the illegal drugs found in the vehicle he was

driving.    Id. Also see Attorney Eugenio A. Soils, Jr.,      Sworn

Affidavit    at ^2, attached   hereto and incorporated herein

for purpose hereof as Exhibit 3.

      However, attorney Eugenio   A. Soils, Jr., informed

applicant that since    he had already accepted responsibility

for the drugs to    the Texas State   Trooper, he could not use

his innocence of the crime . as a defense. Instead,    attorney

Eugenio A. Soils, Jr., informed    applicant that the only

defense he had was that the Texas State Trooper did not have

consent to search the vehicle nor did he had    reasonable

suspicion or probable cause to search the vehicle.     That

attorney Eugenio A. Soils, Jr., could present those defenses

to the jury under Texas law. See Article 38.23(a) of the

Texas   Code of Criminal Procedure. See Exhibit 1.

      Notwithstanding the fact that Applicant had informed

attorney Eugenio A. Soils, Jr., that he was innocent of,the

charges of possession of   marihuana. That he had accepted

culpability because his mother had coerced him into taking

the blame to protect her from going to jail, attorney Eugenio

A. Soils, Jr., informed applicant that he couldn't use that

as a defense to prove his innocence, and by doing same
                                                         PAGE 8 OF 22



abandon a valid claim       of innocence. See Exhibit 1.

       Attorney    Eugenio A. Solis, Jr., fuirther informed

applicant that he would review and study the merits of his

defense, and the       facts of the    case against   him. See

Exhibit 3 at 1l2 . ,

      After reviewing the evidence against applicant of the

Safety Traffic checkpoint stop,          and studying the merits of
his defense, attorney Eugenio A. Solis, Jr., informed

applicant that there was no picture of the         burnt marihuana

as alleged by the State of Texas State Trooper. He further

informed applicant       that he had discussed the    case with the

district attorney. That the district attorney was overload

with checkpoint cases and had extended an plea agreement in

his case. That the plea offer consisted         of a recommendation

to the judge of a two (2) year deferred adjudication

probation in exchange for applicant's guilty plea. See

Exhibit 3 at f3. .

      Attorney Eugenio A, Solis, Jr., affirmatively informed

and    advised    applicant, that he, as applicant's attorney,

was    looking out     for applicant's    best interest and that

applicant best interest was to accept the district attorney's

plea offer. That since applicant had already accepted

responsibility for the marihuana found in the vehicle he was

driving, he had no other choice but to plead guilty. See

Exhibit    1:.

      Attorney Eugenio A. Solis, Jr.,       further informed

applicant that, notwithstanding the fact that he was pleading

guilty, the plea       offer of    two (2) years deferred

adjudication probation,       if   successfully completed, the
                                                      PAGE 9 OF 22



district judge would sign an dismissal order that would be

the equivalent to an acquittal of the charges. The effect of

which would be as if applicant was found innocent of the

crime. See Exhibit 3 at i!3.

    On FebruarY 27, 1989, during the plea arraignment

hearing, applicant believing that his attorney Eugenio A.

Solis, Jr., was correctly informing and advising him, plead

guilty and at the same moment was sentenced to a two (2) year

term of deferred adjudication probation. (See Docket Entry

22).

    On April 29, 1991, applicant was discharged from deferred

adjudication probation by court order and filed for record

the same date. (See Docket Entry 39).

    On June 19, 1995, applicant was convicted in federal

court of conspiracy to possess with intent to distribute

marihuana in violation of Title 21 USC §§ 841(a), 846 and

sentenced to a mandatory life without release under §§

841(b)(1)(A), 851, as a result of the two (2) year deferred

adjudication probation, which was used as the basis of a

prior offense for purposes of enhancement and the subsequent

sentence of mandatory life without release.

    Applicant retained attorney Rudy Wattiez, from San

Antonio, Texas, to prepare and file an application for writ

of habeas corpus   pursuant to article 11.08 of the Texas Code

of Criminal Procedure. Article 11.08 is the proper vehicle to

challenge a guilty plea that resulted in deferred
adjudication probation.

    Applicant informed attorney   Rudy Wattiez, that he wanted

to raise in his application    the following issues: l)That his
                                                     PAGE 10 OF 22




guilty plea was obtained via a plea of which was unlawfully
induced in that it was not voluntarily asserted nor was the

full understanding of the consequences known to the applicant

at the time of the agreement; 2)Ineffective Assistance of

Counsel pertaining to the guilty plea claim raised   in issue

one, and; 3)Applicant was denied the Effective Assistance of

Counsel, when Trial Counsel abandon a valid claim of

Innocence. See Exhibit 1.


    Oh about June 14, 2010, attorney Rudy Wattiez, filed on

behalf of applicant, an application for writ of habeas corpus

pursuant, to Article 11.08 of the Texas Code of Criminal

Procedure. Attorney Rudy Wattiez, however, failed to raise

the ineffective assistance of counsel claim pertaining to the

abandonment of a valid claim of innocence. Attorney Rudy

Wattiez only raised the involuntariness of applicant's guilty

plea and ineffective assistance of counsel pertaining to the

involuntary guilty plea. (See   Docket Entries 42, 55 and 64).

    An evidentiary hearing was held on this application on

July 25, 2011,   and that same day it was denied. (See Docket

Entry 68).

     Attorney Rudy Wattiez, informed applicant he would

appeal the courts denial, however,   he filed an untimely

notice of appeal and the appeal was dismissed as untimely.

(See Docket Entry 82).
                                                         PAGE 11 OF 22

                                  VI.

                          STANDARD OF REVIEW



    In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052

(1984), the Supreme Court established a two component

standard for judging     claims of Ineffective Assistance of

iCounsel. First,   "the defendant must show that counsel's

performance fell below an objective standard of

reasonableness." Secondly,    "the defendant must, show a

reasonable probability,     but for counsel's unprofessional

errors, the result of the proceedings would have been
different. A reasonable probability     is probability

sufficient to undermine confidence in the outcome."

    A defendant alleging that the entry of the guilty plea

was the result of ineffective assistance of counsel "must

show" that there is a reasonable probability that, but for

counsel's errors, he would not had plead guilty, and would

have insisted on going    to trial. Hill v. Lockhart, 474 U.S.

52, 106 S.Ct. 366 at 370 (1985).

    A plea of guilty must as with a matter of due process, be
voluntary, knowing and an intelligent act. U.S. v. Guerra, 94

F.3d 989 (5th Cir. 1996). To constitute an intelligent act,

it must be "done with sufficient awareness of the relevant

circumstances and likely consequences." McMann v. Richardson,

397 U.S. 759, 766 (1970).

    A guilty plea "is open to attack on the ground that

counsel did not provide the defendant with 'reasonably

competent advice.'" Cuyler v. Sullivan, 446 U.S. 335, 344

(1980)(quoting McMann    v. Richardson, 397 U.S. 759, 770

(1970)); of. Hill V. Lockhart, 474 U.S. 52, 58-59
                                                         PAGE 12 OF 22



 (1985)(holding that, in the    plea context, a habeas
 Petitioner establishes ineffective assistance of counsel by
 demonstrating that counsel's advice and performance fell
 below an objective standard of reasonableness, based upon
 which he pled guilty).

                                VII.
                         SUMMARY OF ARGUMENT

     Applicant's guilty plea was involuntarily,
 unintelligently and unknowingly as a product of
 misinformation arid coercion. Applicant entered into a guilty
 plea/ after he had steadfastly informed his attorney Eugenio
 A. Solis, Jr., that he was innocent of the charges against
 him and wanted to take the case before a jury trial which
 would prove his iririocence.

     Trial attorney Eugenio A. Solis, informed Applicant that
he had already reviewed the evidence agairist him. That, since
Applicant had already accepted responsibility for the drugs
found in the truck, he had no other choice but to plead
guilty. That the district attorney had offered a plea
bargain. That the offer the district attorney had extended if
completed, would be if he was never charged.
           attorney Eugenio A. Solis, affirmatively informed,
and advised Applicant, that he, as Applicant's attorney, was
looking out for his best interest in the case and that
Applicant's best interest was to accept the district
attorney's plea offer.                               ,    .

    On February 27, 1989, during the plea arraignment
hearing. Applicant believing that his attorney Eugenio A.
Solis, was correctly informing and advising him, plead guilty
                                                       PAGE 13 OF 22



 and at that same moment was sentenced to a two (2) year term
 of deferred adjudication probation.

     However, on June 19, 1995, Applicant was convicted in

 federal court of conspiracy to possess with intent to

 distribute   marijuana in violation of Title 21 USC §§ 841(a)
 and 846 and sentenced to a mandatory life without release

 sentence under §§ 841(b)(1)(A) and 851, as a result of the

 two (2) year deferred adjudication probation conviction,

 which was still in his record and was used as the basis of a

 prior offense for purposes of enhancement and the subsequent
sentence of mandatory life without release.

     Applicant's attorney provided ineffective assistance in

getting Applicant to forgo a jury trial when Applicant had
,steadfastly informed him that he was innocent of the charges
against him and wanted to prove his innocence in a trial by
jury. Moreover, Applicant's attorney provided ineffective

assistance when he affirmatively informed Applicant that,
notwithstanding the fact that he was pleading guilty, the
plea offer of two (2) years deferred adjudication probation,
if successfully completed, the district judge would sign an
dismissal order that would be the equivalent to an aquittal
of the charges. The effect of which would be as if Applicant
was found innocent of the crime.

    The ineffectiveness of Applicant's trial attorney
prejudiced the outcome of the criminal proceedings. If
Applicant would have known that said guilty plea and
conviction would remained in his record and later used for

enhancement- purposes-, he never would have entered a guilty
plea, and would have persisted in a trial by jury.
                                                       PAGE 14 OF 22

                              VIII.
                             ARGUMENT
               INEFFECTIVE^ASSISTANCE QF COUNSEL


    In the instant case, Applicant alleges that he received

ineffective assistance of counsel. Applicant asserts that he

informed his trial attorney Eugenio A. Soils, before the plea

arraignment hearing, that he was innocent of the charges

against him. That he had taken the blame just to protect his

mother, that his mother had told him to stay quiet and for

him not to say she knew of the marijuana.

    Applicant further informed trial attorney Eugenio A.

Soils, that he had refused to take the blame at first, and

told his mother that he didn't want to take responsibility
for something he knew nothing about. But that his mother

coerced him to take responsibility. That based upon this

threats and coercion of his mother. Applicant accepted

responsibility for the marijuana found in the vehicle.

    Applicant steadfastly informed      trial attorney Eugenio A.

Soils, that he was determined to have a jury trial which

would prove his innocence.

    However, trial attorney Eugenio A. Soils, informed

Applicant that since he had already accepted responsibility

for the drugs found in the vehicle to the State Trooper, he

couldn't use that as a defense. That he had discussed the

case with the district attorney, and the district attorney

was overload with checkpoint cases and had extended a plea

agreement in his case. That the plea offer consisted of a

recommendation to the judge of a two (2) year deferred

adjudication probation in exchange for Applicant's guilty

plea.
                                                    PAGE 15 OF 22



    Attorney Eugenic A. Soils, affirmatively informed and

advised Applicant that he, as his attorney, was looking out

for his best interest in the case, and that his best interest

was to accept the district attorney's plea offer, That since

Applicant had already accepted responsibility for the

marijuana found in the pick-up truck, he had no other choice

but to plead guilty.

   Attorney Eugenic A. Soils, further informed Applicant

that, notwithstanding the fact that he was pleading guilty,

the plea offer of two (2) years deferred adjudication

probation, if successfully completed, the district judge

would sign a dismissal order that would be the equivalent to

an acquittal of the charges. The effect of which would be as

if Applicant, was found innocent of the crime.

   On.February 27, 1989, believing that his attorney Eugenic

A. Solis, was correctly informing and .advising him. Applicant

plead guilty and at same moment was sentenced to a two (2)

year deferred adjudication probation.

   However, on June 19, 1995, Applicant was convicted in

federal court of conspiracy to possess w/i to distribute

marijuana, and was shocked when he was sentenced to a

mandatory life without release as a result of the two (2)

year deferred adjudication probation conviction, which was

still in his record and used as the basis of a prior offense

for purposes of enhancement and the subsequent sentence of

mandatory life without release.

    The Supreme Court has made clear that "[t]he Sixth

Amendment requires effective assistance of counsel at

critical stages of a criminal proceeding." Lafler v. Cooper,
                                                     PAGE 16 OF 22



 132 S.Ct. at 1385 (2012). "The constitutional guarantee

 applies to pretrial critical stages that are part of the

 whole course of a criminal proceeding, a proceeding in which
defendants caanot be presumed to make critical decisions
without counsel's advice." Id. Convictions by guilty plea -
which make up between ninety-four and   ninety-seven percent
of convictions matiohwide - "have become so central to the,

administration of the criminal justice system that defense
counsel have responsibilities in the plea bargain process ...
that must be met to render the adequate assistance of counsel

that the Sixth Amendment requires in the criminal process at
critical stages," Frye v.   Missouri, 132 S.Ct,. at 1407

(2012). "Indeed, this Circuit has observed that providing
counsel to assist a defendant in deciding whether to plead is
'[b]ne of the most precious applications of the Sixth

Amendment.'" United States v. Rivas-Lopez, 678 P.3d 353, 356
(5th Cir. 2012)(quoting United States v. Grammas,. 376 F.3d

433, 436 (5th Cir. 2004) . Thus, before a defendant decides

whether to plead guilty, "counsel's   function as assistant to

the defendant [gives rise to] the overarching duty to
advocate the defendant's cause and the more particular duties
to consult with the defendant on important decisions" after

"mak[ing] reasonable investigations." Strickland, 466 U.S. at

688, 691.

    The trial court is well aware that attorney Eugenio A.
Soils, didn't even bother to file any motion and/or pretrial
motions in the case on behalf of Applicant,in over a year,
while the case was pending. Instead, attorney Eugenio A.
Soils, affirmatively misinformed Applicant and gave bad
                                                       PAGE 17 OF 22



 advice to induce him to plead guilty.

     A guilty plea may   be accepted by the Court only if it is

 free and voluntary. TEX. CODE CRIM. PROC. ANN. art.

 26.13(b)(Vernon 1989). An accused is entitled to effective

 assistance of counsel during the plea bargaining process. Ex

 parte Battle, 817 S.W. 2d 8l, 83 (Tex. Crim. App. 1991). A

 defendant's election to plead guilty when based upon

 erroneous advice of counsel is not made voluntarily and

 knowingly, id. Also see Abu-Ein v. State, 921 S.W. 2d 807,

 808 (Tex. App. Houston [14th Dist] 1996, pet. ref'd).

     Applicant contends that instead of proceeding to trial,

 attorney Eugenio A. Soils, affirmatively misinformed

Applicant by informing him that, since he had already

 accepted responsibility for the marijuana found in the truck

 to the State Trooper, he had no other choice, but to plead

guilty. And gave bad advice to induce him to plead guilty.

    Applicant contends that he received affirmative

 misinformation and bad advice from his attorney Eugenio A.

.Solis, which rendered his plea unknowingly, unintelligently,

and involuntarily.

    Applicant is aware of the fact that he was questioned by

the trial court prior to accepting the plea and sentencing,

but as he thought he had been correctly informed by his

attorney and had been instructed by him to answer the

questions, so that the court would accept the guilty plea,

this does not preclude him from raising this collateral

attack^ especially since he did not plead guilty and did not

received what his attorney affirmatively informed and advice

him. The fact that the court admonished Applicant, that did
                                                      PAGE 18 OF 22



not affect the belief of Applicant, that if he successfully-

completed the two years of deferred adjudication probation,

the district judge would sign an dismissal order that would

be the equivalent    to an aquittal of the charges. The effect

of which would be as if Applicant was found innocent of the

crime.


    Given the U.S. Supreme Court's repeated emphasis on the

paramount irriportance of providing effective representation

and competent advice regarding the consequences of conviction

before entry of the defendant's guilty plea, it cannot be

concluded that the prejudice caused by a violation of that

duty can be categorically erased by a judge's general and

laconic statement during the plea hearing after the

bargaining process is complete and immediately prior to the

court's acceptance of the guilty plea. See, e.g.. United

States V. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed. 2d

657 (1984)("[T]he    adversarial process protected by the Sixth

Amendment requires that the accused have 'counsel acting in

the role of an advocate.'").

    Indeed, as the Supreme Court in Lafler and Frye makes

clear, if a full    and fair trial or an otherwise voluntary

guilty plea cannot "inoculate [] [counsel's] errors in the .

pretrial process" from collateral attack under Strickland,

see Frye, 132 S.Ct. at 1407, neither can a trial judge's mere

statement at a plea colloquy function to bar a petitioner

from demonstrating that he was prejudiced by counsel's

deficiencies during the pre-guilty-plea stage of proceedings.

Lafler, at 1385.

    The Court in both Lafler and Frye therefore made clear
                                                    PAGE 19 OF 22



that if the defendant establishes ineffective assistance of

counsel during the plea negotiation stage of proceedings, a

subsequent, otherwise - voluntary guilty plea or even a full

and fair trial does not necessarily "wipe[] clean any

deficient performance by defense counsel during plea

bargaining."

    Further, and perhaps most significantly, by the time the

plea colloquy occurs, the plea bargaining process is over -

and with it, defense counsel's opportunity to negotiate and

advise the client.

    Attorney Eugenio A. Soils's performance in this case was

constitutionally deficient.

    Trial attorney Eugenio A. Soils, informed Applicant that

he had already reviewed the evidence against him.   That,

since Applicant had already accepted responsibility for the

drugs found in the truck, he had no other choice but to plead

guilty. And that the district attorney had offered a plea

bargain. That the offer the district attorney had extended if

completed, would be if he was never charged.

    Attorney Eugenio A. Soils, affirmatively informed and

advised Applicant that he, as his attorney, was looking out

for his best interest in the case, and that his best interest

was to accept the prosecutor's plea offer.

    On February 27, 1989, during the plea arraignment

hearing. Applicant believing that his attorney Eugenio A.

Soils, was correctly informing and advising him, plead guilty

and at that same moment was sentenced to a two (2) year term

of deferred adjudication probation.

    However, on June 19, 1995, Applicant was convicted in
                                                      PAGE 20 OF 22



federal court and sentenced to a mandatory life without

release - sentence as a result Of the two (2) year deferred

adjudication probation, which was used as the basis of a

prior offense for purposes of enhancement.

   Petitioner had a strong desire to proceed to jury trial to

prove his innocence, however, he was induced by his
attorney's affirmative misinformation and bad advice. Had

attorney Eugenio A. Solis, correctly informed him that after
completing the two years of deferred adjudicatio^i probation
the conviction would still remain in his record and could be

used for enhancement purposes in a subsequeh't conviction,
there is a reasonable probability that Applicant would have

proceeded to trial. There is also a reasonable probability
that had Applicant proceeded to trial, that the court would
have thrown out the case due to the illegal search and

seizure or the jury would have found him not guilty and/or
acquitted of the charges.

    Counsel's represehtatioh was certainly below a standard

of reasonableness. Counsel's misrepresentation of.material

facts and law, constitutes ineffective assistance of counsel

and entitles Applicant to relief herein. Counsel's errors in
this case were so flagrant, that the court can conclude that

it resulted from neglect or ignorance rather than an informed

professional deliberation.

    Applicant's reliance on his counsel's blatant and

significant misrepresentation rendered his plea Unknowing and
was violative of Applicant's due process rights. See Hill,

474 U.S. at 56.


    Based upon counsel's affirmative misinformation and bad
                                                    PAGE 21 OF 22




advise, Applicant was led to believe that pleading guilty was

an adequate resolution to his situation.

    Counsel's performance fell below the minimum standard of

reasonableness which prejudiced Applicant when he found out

that the misinformed guilty plea and conviction that resulted

in the two years deferred adjudication probation was still in

his record and used as the basis of a prior offense for

purposes of enhancement and the subsequent sentence, of

mandatory life without release.

    If attorney Eugenio A.    Soils, had fully and properly

informed Applicant of the actual consequences of pleading

guilty, there is no way that Applicant, or any rational

person, would have pleaded guilty. See Hill, supra.

                                IX.
                             CONCLUSION


    WHEREFORE, PREMISES CONSIDERED, Applicant prays that this

Court grant this Application for Writ of Habeas Corpus, and

issue a Writ of Habeas Corpus to the State of Texas and the

Federal Bureau of Prisons, directing and commanding

production of Applicant Juan Gabriel Cisneros before this

Court instanter, or at such time and place to be designated

by this Court, then   and there to show cause, if any there

may be, why Applicant Juan Gabriel Cisneros should not be

discharged from such illegal confinement. Or in the

alternative, vacate the conviction and allow Applicant Juan

Gabriel Cisneros, to withdraw hie guilty plea and/or dismiss

the indictment. And any other relief as the Court deems just

and proper in conformance to the relief sought.

    I, Juan Gabriel Cisneros, Applicant declare under the
                                                    PAGE 22 OF 22



penalty of perjury, pursuant to Title 28 USC 1746, that the

above   and foregoing is true and correct to the best of my

own personal knowledge, understanding and belief.

Executed: September 19, 2016.




                                     RESPECTFULLY SUBMITTED


                                    JflanGiCisneros
                                    Reg. No. 40178-079
                                    United States Penitentiary
                                    P.O.Box 3900
                                    Adelanto, OA 92301
                                                     PAGE 1 OF 3



THE STATE OF CALIFORNIA   )
                          ^   Cause No. 88-02-02179
COUNTY OF SANBERNARDINO   )

              SWORN AFFIDAVIT OF JUAN GABRIEL CISNEROS



    I, Juan Gabriel Cisneros, hereby affirm under the penalty
of perjury, pursuant to Title 28 USC § 1746, that the below
statements that I have made are true and correct to ths best

of my ability, understanding and belief.
    1. Juan Gabriel Cisneros, am over the age of 18 years and
am of sound mind-to make this affidavit.

   1. 1 am the Defendant/Applicant so named in the

Application for Writ of Habeas Corpus under Article 1108.
    2. The statements and allegations contained within my

instant motion are true and correct.

    3. At the time of this case I was young and did not have

any criminal record associated with illegal drugs,
    4. Eugenic A. Solis was my attorney in Case No. 88-02-
02179.


    5. My guilty plea was involuntarily, unintelligently and
unknowingly entered and was a product of misinformation and
coercion by attorney Eugenic A Solis.

    6. I entered into a guilty plea, after I had steadfastly
informed my attorney Eugenic A. Solis, that I was innocent of
the charges against me and wanted to take the case before a
jury trial which would prove my innocence. It was my desire
back then and continues to be my desire today to plead not
guilty to the possession of marijuana charge. I further
assert, I had ho prior knowledge of any marijuana being
                                                    PAGE 2 OF 3




present in the vehicle I was driving.
    7. Attorney Eugenic A. Solis, informed me that he had         ^
already reviewed the evidence against me and that since I had
already accepted responsibility for the drugs found in the
truck, I had no other choice but to plead guilty.
    8. The district.attorney had offered a plea bargain.
    9. The offer the district attorney had extended if
completed, would'be if he was. never charged.
   10. Attorney Eugenic A. Solis, affirmatively informed and
advised me, that he, as my attorney, was looking out for his
best interest and that my best interest was to accept the
district attorney's plea offer.

   11. On February 27, 1989,' during the plea arraignment
hearing, believing that my attorney Eugenic A. Solis, was
correctly informing and advising me, I plead guilty and at
that same moment was sentenced to a two (2) year term of
deferred adjudication probation.

   12. I successfully completed the two (2) year deferred
adjudication probation.
   13. On June 19, 1995, I was convicted in federal court of
conspiracy to possess with intent to distribute     marijuana
and sentenced to a mandatory life without release as a result
of the two (2) year deferred adjudication probation
conviction which was still on my record and was used as the
basis of a prior offense for purposes of enhancement and the
subsequent sentence of mandatory life without release.
   14. I retained attorney Rudy Wattiez, from San Antonio,
Texas, to prepare and file an application for writ of habeas
corpus, pursuant to article 11.08 of the Texas COde of
                                                     PAGE 3 OF 3



Criminal Procedure.

   15. I informed attorney Rudy Wattiez, that I wanted to

raise in the application the following issues: 1) That my
guilty plea was obtained via a plea of which was unlawfully
induced in that it was not voluntarily asserted, nor was the
full understanding of the consequences known to me at the

time of the agreement; 2) Ineffective Assistance of Counsel

pertaining to the guilty plea claim raised in issue one; and

3) I was denied the Effective Assistance of Counsel, when
trial counsel abandon a valid claim of- innocence.

   16. Habeas attorney, Rudy Wattiez failed to raise the

Ineffective Assistance of Counsel claim pertaining to the
abandonment of a valid claim of innocence.

   17. Habeas attorney, Rudy Wattiez filed an untimely notice
of appeal, which prejudiced my appeal.



FURTHER AFFIANT SAYETH NAUGHT.




Executed on: September 19, 2016.

                                   RESPECTFULLY/SUBMITi:Eb


                                    Ju^ GabrieT Cisneros
                                    Reg. No. 40178-079
                                    United States Penitentiary
                                    P.O.Box 3900
                                    Adelanto, OA 92301
"ExK\bV
STATE OF TEXAS    )
                  )           CAUSE NO. 88-2179
COUNTY OF STARR   )

                               AFFIDAVIT
     My name is Martha Cisneros, and am over the age of 18 years and
 competent to make this affidavit.
     . I am the mother of Juan Gabriel Cisneros, and on January 15,
       1988, I put 115 lbs. of marijuana in the engine compartment
       of my husbands pick-up truck.
     . After putting the marijuana in the pick-up truck, I asked
       Juan Gabriel Cisneros, to take me to Corpus Christi, Texas, in
       my husbands pick-up truck. Juan Gabriel Cisneros, did not know
       or had any knowledge of the raarijuana being hidden in the engine
       compartment of the pick-up truck he was driving.
     . When we were stopped at a Department of Public Safety traffic
       checkpoint, the DPS Trooper, without giving him consent, searched
       the pickr-up^^ t^ and found the marijuana I had hidden in the
       engine coMpartraent.
     . At the time the DPS Trooper found the marijuana, I told Juan
       Gabriel Cisneros, to take responsibility of the marijuana and
       for him to stay quiet and not to say that I knew of the marijuana.
     . When I told Juan Gabriel Cisneros, to take responsibility of
       the marijuana, he told me he didn t want to take responsibility
       for spmething he knew nothing about. To which I responded in a
       threatening manner, that he hacj to take responsibility because
       I was his motheri

     . Juan Gabriel Cisneros, took responsibility of the marijuana
       because I pressured arid threatened him, and not because he knew or
       had knowledge of the marijuana found in the pick-up truck he was
       driving.

     . I am the person responsible for putting the marijuana in the
       engine compartment of the pick-up truck that my son Juan Gabriel
       Cisneros, was driving on January 15, 1988.
     . I hired attorney Eugenio A. Solis, Jr., to represent my son,
       Juan Gabriel Cisneros. I told attorney Eugenio A. Solis, Jr., to
       do whatever he had to, to get my son on some kind of probation.
     I, Martha Cisneros, certify under the penalty of perjury, pursuant
to 28 U8C § 1746, that the above declaration is true and correct, to the
best of my own personal knowledge, understanding and belief.
Executed on this the 15th day of Septerabet, 2016.

                                                  Respectfully

                                                  Martha Cisneros
                                                  3-Cisneros Lane
                                                  Roma, Texas 78584
                         CAUSE NO.2179


EX PARTE;                 X            IN THE DISTRICT COURT
JUANCISNEROS             X
                         ^
                                       79^" JUDICIAL COURT
                                       BROOKrCOUNTYTTEXAS




                          AFFIDAVIT


STATE OF TEXAS             X
COUNTY OF JIM WELLS X

BEFORE ME,THE UNDERSIGNED AUTHORITY,on this the 26""day of
May, 2,000 personally appeared EUGENIC) A. SOLIZ, JR., personally known to
nie, and being duly swora, declared to me the following:

   1. My iiaine is Eugenio A.Soliz, Jr. On January 15, 1988^ I was practicing law
      in the State of Texas licensed by the State Bar of Texas, and said day I was
      employed to represent Juan Cisncros on a charge of possession of
      marijuana in Brooks County, Texas. The criminal case was styled "The
      State of Texas vs. Juan Cisneros", Cause No. 2179.
   2. Mr. Cisneros stated to me at the time that Lwas being retained that he
      Wanted to fight the case and that he wanted a jury trial. Although he felt
      that he was not guilty, I needed to study the merits of his defense, and the
      facts of the case against him. Mr. Cisneros disclosed to me that he felt more
      comfortable going to a jury trial with a counsel of his choice than with a
      court appointed counsel.
   3. The District Attorney at the time had an open file policy whereby the
      evidence against the defendant could be viewed without the necessity of
      forcing discoyeiy. After reviewing the facts of the border check point stop,
      and discussing the case with the District Attorney, who was overloaded with
      checkpoint cases, an offer was made by the District Attorney to recommend
      Deferred Adjudication Probation for a term of two years in exchange for
      Mr. Cisneros' plea of guilty. I advised Mr. Cisneros of the offer and
      further advised him that if his probation was not revoked within the two
      year term that the District Judge would sign a dismissal order and that
      would be as if there had never been an offense eonviction, his record would
      be clean..I reiterated to Mr. Cisneros that a dismissal by the court would
      like never having been convicted.
  4. After hearing the advice, Mr. Cisncros agreed to plead guilty to the charge
      in the indictment. He received a "Deferred Adjudication and Probation"
     for a term of two(2) yean the 27"* day of February, 1989. A certified copy
      of said "Deferred Adjudication and Probatipn" is attached hereto and
     incorporated herein for purposes hereof as Exhibit 1.
    5.   Although I advised Mr. Cisneros that if he successfully completed his term
         of probation, that the conviction would not show on his record, I now
         realize that a federal judge has used the record to enhance a sentence, even
         though an "Order Discharging Defendant from Deferre^ Adjudication
         Probation" is on file signed by the District Judge on the 29 day of April,;
         1991. A certified copy of the said order is attached hereto and incorporate
         herein for purposes hereof as "Exhibit 2". The use of the said Cause No.
         2179, the plea of guilty and the deferred adjudication probation is contrary
         to what I initially assured Mr. Cisneros.

      Executed this 26"* day of May 26,2000.

                                             Elrgeihio Ai S0I12, Jr


SWORN AND SUBSCRIBED to before me by the said Eugenio A. Soliz, Jr. on this
the 26"* day of May 26,2000.

                                              »nrNotary
                                Public in and for the State
                                Of Texas                               GEORGE M,MORALES
                                                              ^        MYC0MU)6810MEXP<BES \
 DEFERRED RDJUDICRTION, PROBRTION


                                 NO.   2179




 THE ST«TE OF TEXOS                                IN THE DISTRICTT COURT OF


                                                   BROOKS COUNTY, TEXOS

                                                   CHRRQE;       POSSgSSIOIl

 DEFENDfiNT'S OODRESSs      Starr Route             OF HARIHDANA

Box 64, Rio Grande City, Texas
                                                   DATE OF OFFENSES 1/15/88

                                                   DATE OF BIRTH OF
                                                   DEFENDANT s     12/12/68

      ON    THIS    day   this cause was called for trial and the State
 appeared  by and through the office of the District Attorney, and
 the Defendant   appeared,  in  person and   by his attorney, both
 parties having announced ready for trial and having filed written
 waiver of trial by jury as approved and entered by the court in
 the Minutes of the Court 5

     MHEREUPON, the State's Attorney having read the allegation
of crifflinality   on file herein, the Defendant pleaded guilty to
said charge,     and  after the Court    admonished said Defendant
concerning the consequences of his plea of guilty, said Defendant
insisted upon pleading guilty.    It plainly appearing to the Court
that the Defendant is sane and uninfluenced by arry cpnsiderat 1 on
of  fear,  persuasion,    delusive hope of pardon prompting him to
confess his guilt, said plea of guilty is by this Court received
and  entered of record upon the Minutes of the Court as the plea
of the Defendant herein.


      The Defendant  herein having filed    Written waiver of all
legal   rights pertaining to the confrontation and examination of
witnesses and consenting to evidence in the form of affidavits,
documents and stipulatibhs in proof of the offense alleged, such
waiver is consented to and      approved by the Court and ordered
filed herein.


     MHEffiUPON, the State having satisfied the Court by legal and
sufficient evidence substantiatlng the defendants' guilt, the
Court, after hearing and considering the evidence and argument of
counsel,  finds that the best interest of both the public and the
Defendant   will be subserved if further proceedings in this cause
be  deferred   and the Oefendant be placed on probation under the
supervision of the court for a period of
years.


     IT IS ORDERED that further proceedings be deferred without
an  adjudication  of guilt   during  the good   behavior  of the
Defendant  and that he is hereby placed on probation for the term
as    set     out    above,   beginning       on   this   date,     under      Court
supervision, as set forth        below, viz:

     THAT during the term of the probation the Defendant shall:

     <a>      Commit no offense against the laws of this State or
any other State or of the United States;

     <b>     Avoid injurious or vicious habits;

     fc)        Avoid     persons or places of disreputable or harmful
character;                                                                      HLED
                                                                      £10      inucx




                                    C0i4
         td)   Report to the fidult Probation Officer of this County,
     who is hereby appointed to supervise this probation, once each
     calmdar month duning the tenm of thlB probation;
          te) Permit the said Probation Officer to visit you at your
     home or elsewhere in order to supervise your probation;
                       fiBinain    within    the    State   of Texas unless granted
     written permission to leave;

                       Pay al1      Court Costs of +7b. Ibfi ana Lourc ^ppointea
    attorney's       fees of             -0
                                              withl"            ^___^days of this
    date;

            th)     Pay a fine of S a.nnn nn
                                                    /$1,000.00 on   2/27/89 and balance ^ 8/27/89
                                                                                           a/
    ^MxniUiHKKklKkxxttlHbMoacSMticrixxsbAx^MAclcK   Payment to be made to District
    Clerk, Courthouse.




          (j)     Support your dependants, if any;
            <k)       Pbstain      from the use of intoxicating liquor of any
    kind;

            <1)   Refrain from gambling in all forms.
                                                                                    00
            <m>       Pay    a    Supervisory fee in the amount of S / v             per
   month starting 30 days from this date, to Brooks County Pdult
   Probation Department, during the term of his probation;
        The Clerk of this Court is directed to furnish Defendant
   herein a certified copy of this order as a written statement of
   the period and terms of his probation, and to take Defendant's
   »^ceipt        therefore, and         upon the successful completion of
   Defendant's probation, the defendant shall be discharged and the
   proceeding against him shall be dismissed, except that upon
   TOnvictiOh of a subsequent offense, the fact that the defendant
   had previously received probation shall be admissable before the
   Court or jury to be considered on the issue of penalty.
   SIONEO AND ENTERED this                  day             February
                                                                               19
                                                                                     89




   D^^'eh.dant acknowledges receipt                    D1STRICT JUP!^
         copy of the above
                                                       BROOKS COUNTY, TEXPS




                                  pI^uJju M cidiMA'

(o)/ittiiuL OUouU




                                            eoi5
                              NO.   2179



   THE STATE OF TEXAS
                                    ][            IN THE DISTRICT COURT
  VS.
                                    ]I            OF BROOKS COUNTY, TEXAS
  JUAN GABRIEL CISNEROS
                                    ][            79TH JUDICIAL DISTRICT

  ORDER DISCHARGING DEFENDANT FROM DEFERRED ADJUDICATION PROBATION

       THIS DAY, came to be heard the matter of determining whether
  the judgmenL of conviction and placing the defendant on deferred
  adjudication probation heretofore entered in this cause should be
 set aside and the Defendant discharged from deferred adjudication
 probation, and the Court after hearing the evidence submitted and
 It appearing from said evidence that the defendant was indicted in
 this cause for the felony offense of Possession of Marihuana
 and    the 27th day of           February. 19 89 . was convicted
therefore, and that the imposition of sentence was suspended and
the Defendant placed on Deferred Adjudication probation for a
period of two (2) ^ years and it further appearing to the
satisfaction fulfilled, it is accordingly considered, ORDERED AND
            ... cour. .... ...
probation be ter^lbatad and Defendant be diacharged from said
deferred Adjudication probation.
    SIGNED AND ENTERED this
                                         day of
                                                                   19




                                TERRY A. &ASALES
                               DISTRICT JUDGE
                               79th judicial DISTRICT
                               BROOKS COUNTY, TE
                                                            mo




                                                   P^eMa,
                                                          i 4'         PIIEO      A
                                                       at iO OUn-nnrj*         <XJ      u
                          Cause No. 88-02-02179


                                                                 OCT     3 2016
  AN GABRIEL CISNEROS

                                   IN THE DISTRICT                                    ,TX
                                                   DIS im y            nTY            eputy
                                   79TH JUDICIAL
vs.
                                   BROOKS COUNTY, TEXAS


THE STATE OF TEXAS


                            )


                      FINANCIAL STATEMENT AFFIDAVIT
                AND REQUEST, TO PROCEED IN FORMA PAUPERIS

      I, Juan Gabriel Cisneros declare under the penalty of

perjury, pursuant to Title 28 USC §1746, that the following

facts are true and correct, to the best of my personal
knowledge, understanding and belief.

      1. I am JUAN   GABRIEL-CISNEROS and the Applicant in this

Article 11.08 Applicatibh.

      2. 1 have been incarcerated for over 21 years in the

Federal Bureau of Prisons and am serving a life without

release sentence, and do not have any assets or bond that may
be converted to cash to pay the Court fees..

      3. I am hot currently working and have not worked for the

past 11 months, due: to being in the special housing unit and

institution transfer.

That prior to being placed in the Special Housing Unit and
Transfer,. I was working in the Recreation Department and was

being paid $42.00 a month.

      4. 1 wish to proceed as an indigent and prosecute this

Application for Writ of Habeas Corpus without paying costs.
      5. I am unable to pay the Court fees or give security
therefor, because my prison expenses exceed my prison income.
                                                     PAGE 2 OF 2




and unable to borrow money bedause of inrty incarceration.

    6. That my Social Security Number is: XXX-XX-XXXX.

    7.It is my belief that I am entitled to redress in this

Applicatio for Writ of Habeas Corpus.

FURTHER AFFIANT SAYETH NAUGHT.

Executed: September 19, 2016.




                                             ESPECTFULLY



                                              an G. Cisneros
                                            Reg. No. 40178-079
                                            USP/Victorville
                                            P.O.BOX 3900
                                            Adelanto, CA 92301
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                THE STATE OF TEXAS
                                                                      CRiiVilMAL OOCfCET
                            VS.       No.




        DATE OF QRipERS                                                                          MINUTE BOOK
                                                          ORDERS OF THE COURT—continued
               DAY   YCAR




Jill. ni ^
                                                        c^n            y(vl;..^|
                            ili..gv. B>K5uko Cm
-ITfe -Ik. 13
            to                     1                 i-~)\^Jc /ol
iP'i'
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 A           i£..                               L6 j l^kl
                        UNSWORN DECLARATION
                                                     6    H   I*

     1. Juan Gabriel Cisneros, 40178-079, being presently
incarcerated in FCG Beaumont-Medium, Beaumont, Texas, Jefferson
County, declare under penalty of perjury, that                     ^ jq: 0g
stated below are true and correct.
                                                     NQFBJESflAflJR,
     1. On July 2000, I mailed my Application fjjUjrTj^^A.
Corpus (AWHC). I did not receive any acknowledgeme^C from            he

District Clerk, Noe Guerra, Jr.' Subsequently myi/^iloAnl^^^^          not
Cisneros inquired with the Clerk and had been advisee
been received.


     2. On July 2001, I mailed my second AWHC.to the District
Clerk. I was later informed by my mother that she had been
informed it had been received and would be presented to the
court.    After several months had past my mother again inquired
with the District Clerk and then advised it had not been
received.and instructed for me to sent another.

     3.   On July 1, 2002, 1 mailed my third AWHC to the District
Clerk.    I was later informed by my mother that she had been
informed by the District Clerk that I had filed it in the wrong
court. By letter ;dated November 3, 2002, I wrote the District
Clerk explaining that the AWHC was properly filed in Brooks
County.   See Exhibit A.   I hev6r'received a response.

     4.   Oh December 17, 2002, I filed a Petition for Writ of
Mandamus in Brooks County, explaining that I would file a
Writ of Mandamus in the Texas Court of Criminal Appeals if it
was not processed in accordance to 11.07 et seq.    When I
received no response, I then on March 11, 2003,   filed a Writ
of Mandamus. On April 2, 2003, the Texas Court    of Criminal
Appeals ordered the District Clerk to respond.    On May 16, 2003,
the District Clerk responded by stating no AWHC   had been filed
and therefore no action could be taken.

     5. On January 22, 2004, I mailed my fourth AWHC, via
certified return receipt requested No. 70011140000074078761.
See Exhibits B and C.    I was later informed by my mother that
she had been informed by the District Clerk would be processed
and then again later told that it had not been received.
     6. On February 2004, Attorney Jefferey Kearney was retained
to investigate this and other legal matters. Mr. Kearney took
no action for several years which resulted in a complaint being
filed with the State Bar.on November 2007. According to Mr.
Kearney rriy AWHC had been "denied without a written order on
August 18, 1999. Ha made this response on April 25, 2008.




                                  0012
     7.   On June 2, 2008, I had ihy family go to Brooks County
and hand delivered to the District Clerk for filing my fifth;
AWHG, On July 2, my mother was informed that the court was in
the process of filing its report in the Texas Court of Criminal
Appeals. On July 11, she was then informed that it had not
been properly filed because 1 had used an old form, and a new
form had beenLseht to'mejforlBaviag it oampleted. On July 18,
she was then informed that the new forms had been returned tp
the District Clerk for insufficient postage. Finally on July 28,
I ireceiyed the new forms and returned them for filing along a
pppy of this unsworn declaration explaining the 8 year odysspy
1 took in having it filed and processed.




Date: August 1, 2008                           CMjAi'     '.sneros
                                               n Gabriel Cisner<
                                            Juan




                               r> o 1
                               V. v,j 1 o
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                    Cause Number:
View/Edit                                                                                                           File Location;
                    88-02-02179-CR
Case
                    Court:                                                                                          Filing Date:
Defendant           79th District Court                                                                             02/11/1988

Plaintiff           Criminal Offenses                                 Disposition Date                              Disposition Type

                    1.       REOPEN
Other
Party               2.       REOPEN                                   07/26/2011                                    OTHER DISPOSITION

Other               3.       REOPEN                                   10/01/1990                                    DISMISSAL; OTHER DISMISSALS
Primary
                    4.       REOPEN                                   11/06/1989                                    DISMISSAL; OTHER DISMISSALS
Party
                    5.       POSS MARIJ
Attorney                                                              02/27/1989                                    DEFERRED ADJUDICATION
                    >50LBS<=:2,OOOLBS
Bond                Style:                                                                                          Offense Date;
                    State of Texas vs JUAN GABRIEL CISNEROS                                                         01/15/1988
Cash Bond

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Case                                                                                     All Events
Summary
Report                   #              Type              Date                                        Description                              Image       Pages

Location            L         INDICTMENT               02/11/1988 INDICTMENT                                                                 333013.tif      1
History             2.        BAIL BOND                02/11/1988 BAIL BOND-$5000.00                                                         3330l4.tif     2

                    3,        LETTER                   02/11/19:88 LETTER FROM DAVID T. GARCIA, CTY ATTY                                     3330i5.tjf      1

                    4.        MOTION                   02/12/1988    MOTION FOR SUMMARY FORFEITURE & DESTRUCTION                             333019.tif     2

                              ORDER                    02/19/1988 ORDER FOR SUMMARY FORFEITURE & DESTRUCTION                                 333021.1:if    3

                              MOTION                   02/25/1988 1ST AMENDED MOTION FOR SUMMARY FORFEITURE & DESTRUCTION                    333023.tif     2

                              WAIVER OF
                    L'                                 02/26/1988 WAIVER OF ARRAIGNMENT                                                      3330l6.tif     1
                              ARRAIGNMENT

                              ORDER                    03/01/1988 1ST AMENDED ORDER FOR SUMMARY FORFEITURE & DESTRUCTIOI^                    333024.tif     3

                    %         LETTER                   03/04/1988 LETTER FROM CTY ATTY DAVID T. GARCIA                                       333018.tif     1

                    10.      SUBPOENA RETURN           08/20/1988 SUBPOENA RETURN                                                            333029.Hf      2

                    11^      SUBPOENA RETURN           08/24/1988 SUBPOENA RETURN                                                            333D31.Hf      4

                    12.       LETTER                   08/24/1988    LETTER FROM CTY ATTY                                                    333033.tif     1

                    13.      SUBPOENA ISSUED TO        09/12/1988 SUBPOENA ISSUED                                                            333027.tif     2

                    14.      LETTER                    11/10/1988    LETTER FROM CTY ATTY                                                    333035.tif     1

                    15.      SUBPOENA RETURN           11/15/1988 SUBPOENA RETURN                                                            333037.tif     4

                    16,      SUBPOENA ISSUED TO        11/28/1988 SUBPOENA.ISSUED                                                            333034.tif     2

                    17.      OBJECTION                 11/28/1988    OBJECTION TO ASSIGNED JUDGE                                             333038.tif     3

                    IL.      PRETRIAL                  11/28/1988 PRETRIAL ORDER                                                             333039.t!f     1

                             JUDGMENT NISI &
                                                       01/23/1989 JUDGMENT NISI                                                              33304n.rif     2
                             CAPIAS INSTANTE.R

                    2L       PLEA MEMO                 02/27/1989 PLEA MEMO                                                                  333043.tif.    4

                             MOTION TO REDUCE
                    21.                                02/27/1989    MOTION/ORDER TO REDUCE CHARGE                                           333D46.tif     1
                             CHARGE

                             DEFERRED
                    22,                                02/27/1989 DEFERRED ADJUDICATION- 2YRS                                                333047.tif     2
                             ADJUDICATION

                             ARREST
                    a.                                 02/27/1989 ARREST REPORT/OFFENSE                                                      333051.tif     5
                             REPORT/OFFENSE

                    24,      MOTION                    03/31/1989    MOTION/ORDER FOR SUMMARY FORFETTURE & DESTRUCTION                       333049.tif     5

                    2^       ORDER                     03/31/1989 ORDER FOR SUMMARY FORFEITURE & DESTRUCTION                                 333060.tif     3

                             STATES MOTION FOR
       ADJUDICATION OF     -
26.                            05/03/1989 STATES MOTION FOR ADJUDICATION OF GUILT                          333a48.tif   7
       GUILT

       ORDER SETTING
27.                            05/03/1989 ORDER SETTING HEARING/ORDERING ARREST                            333052.tif   1
       HEARING

2iL    CAPIAS                  05/04/1989 CAPIAS                                                           333055.tif   6

.29.   CAPIAS RETURNED         05/09/1989 CAPIAS RETURN                                                    333054.tif   2

30.    NOTICE .                08/24/1989 NOTICE                                                           333056.tif   1


31.    BAIL BOND               08/25/1989 BAIL BOND                                                        333057.tif   2

32.    NOTICE                  09/13/1989   NOTICE                                                         333059.tif   2

31.    NOTICE                  10/30/1989 NOTICE                                                           333064.tif   1


       DISMISSAL-STATES
34.                            11/06/1989 DISMISSAL-STATES MOTION TO REVOKE                                333062.tif   1
       MOTION TO REVOKE

35.    MOTION                  02/07/1990   MOTION FOR DISCHARGE FROM PROBATION AND DISMISSAL OF CAUSE     333041.tif   5

       STATES MOTION FOR
36.    ADJUDICATION OF         06/25/1990 STATES MOTION.FOR ADJUDICATION OF GUILT                          333066.tif   2
       GUILT

       ORDER SETTING
37.                            06/25/1990 ORDER SETTING HEARING/ordering arrest                            333Q67.tif   1
       HEARING

       DISMISSAL-STATES
       MOTION FOR
                               10/01/1990 DISMISSAL-STATES MOTION FOR ADJUDICATION Of GUILT                333069.tif   1
       ADJUDICATION OF-
       GUILf
       ORDER DISCHARGING
       DEFENDANT FROM
       DEFERRED
39.                            04/29/1991 ORDER DISCHARGING DEFENDANT FROM DEFERRED ADJUDICATION           333a7Q.tif   1
       ADJUDICATION
       COMMUNITY
       SUPERVISION

40.    LETTER                  04/20/1998 LETTER from def                                                  ?330fBTif    2

                                            APPUCATION FOR A WRIT OF HABEAS CORPUS SEEKING REUEF FROM
41.    APPUCATION              08/06/2008 FINAL FELONY CONVICTION UNDER CODE OF CRIMINAL PROCEDURE,        35S455.tif   36
                                            ARTICLE 11.07

       APPQCATION FOR
       WRIT OF-HABEAS
42.                            06/14/2010   APPLICATION FOR WRlt OF HABEAS CORPUS                          333073.tif   14
       CORPUS AD
       PROSEQUENDUM

43.    NOTICE OF SETTING       10/29/2010 NOTICE OF SETTING 1/3/11 9AM                                     340550.ttf   1

       REQUEST FOR
44.                            10/29/2010 REQUEST FOR HEARING                                              34055l.tif   1
       HEARING

45.    Remarks                 11/01/2010 Remarks- REQUEST FOR COPIES (entire file) mailed on 11-01-10     340581.tif   1

       NOTICE RETURNED
       UNCLAIMED-NOT
       DELIVERABLE AS
46.                            11/12/2010   NOTICE RETURNED UNCLAIMED-NOT DELIVERABLE AS ADDRESSED         341188.tif   1
       ADDRESSED/NO SUCH
       NUMBER/INSUFFICIENT
       ADDRESS

                                            Remarks REQUEST FOR COPIES MR. WATTIEZ CAME IN PERSON ON 12-
47.    Remark's                12/13/2010                                                                  342502.tif   1
                                            8-10 TO PICK UP COPIES OF WHAT HE NEEDED

       MOTION FOR
48.                            12/15/2010 MOTION FOR CONTINUANCE                                           34273i.tif   6
       CONTINUANCE

       MOTION FOR
49.                            12/27/2010 MOTION FOR CONTINUANCE                                           34325l.tff   6
       CONTINUANCE

SC     ORDER                   01/04/2011   ORDER GRANTING CONTINUANCE                                     343390.tif   1

SI.    APPUCATION              02/11/2011   APPUCATION FOR ATTACHMENT OF WITNESS                           3451R6.ttf   4

                                            FAX CONFIRMATION TO ATTY AND I ALSO LET HIM KNOW THAT HE HAD
52.    FAX CONFIRMATION        02/11/2011   to FAX THE CRIMINAL CASE REQUEST FORM TO JUDGE TERRELL'S
                                            OFRCE

                                            CASE SETTING REQUEST- DEFENDANT ATTY'S MAILED IT TO US. I
       CASE SETTING
IL                             02/11/2011   NOTIFIED MR. WATTIEZ HE NEEDS TO FAX IT TO JUDGE TERRELL'S     345lB9.tif   1
       REQUEST
                                            OFFICE

                                            Remarks CRIMINAL CASE REQUEST FORM*** FAXED I TO HEATHER &
54.    Remarks                 03/24/2011                                                                  347l68.tif   2
                                            FAX CONF

                                            FIRST AMENDED APPUCATION FOR WRIT OF HABEAS CORPUS
55.    AMENDED                 03/24/2011                                                                  347169.tif   24
                                            PURSUANT TO TEXAS CODE OF CRIMINAL PROCEDURE, ARTICLE 11.08

56,    ORDER                   03/28/2011 ORDER OF REFER^L AND RECUSAL ON JUDGE'S OWN MOTION               347336.tif   1

57.    ORDER                   04/01/2011   ORDER OF ASSIGNMENT                                            3477i4.tif   1

58,    NOTICE OF SETTING       04/18/2011   NOTICE OF SETTING 4/21/2011 @ 1 PM                             348152.tif   3

12.    BENCH WARRANT           04/26/2011 FEDERAL BENCH WARRANT                                            348338.tif   2

60.    NOTICE OF SETTING       04/26/2011   NOTICE OF SETTING- 07-06-2011 @9A                              348339.tif   1
       RECEIVED FROM
61.
       SHERIFF OR OTHER
                                04/26/2011   RECEIVED FROM SH^IFF OR OTHER                                   348360.tif     1
                                                                 I


       WRIT OF HABEAS
                                05/04/2011   WRIT OF HABEAS CORPUS FOR PROSECUTION                           348754.tif    2
       CORPUS

       RECEIVED FROM
a                               05/05/2011   RECEIVED FROM SHERIFF OR OTHER                                  348755,tif     1
       SHERIFF OR OTHER

                                             BRIEF IN SUPPORT OF DEFENDANTS RRST AMENDED APPLICATION FOR
64.    BRIEF                    05/23/2011   WRIT OF HEBEAS CORPUS PURSUANT TO TEXAS CODE OF CRIMINAL        349317,t!f    111
                                             PROCEDURE, ARTICLE 11.08

                                             LETTER FROM RUDY WATTIEZ OFFICE TO JUDGE SALDANA, MR,
       LETTER                   07/07/2011                                                                   351207.tif    3
                                             BARRERA & DISTRICT'CLERK ON 7/14/11 HEARING

       NOTICE OF SETTING        07/08/2011   NOTICE OF SETriNG-7/25/11 @ 10:30a                              351289,tif     1

67.    EXHIBITS                 07/25/2011   EXHIBITS 1 & 2 FROM,PETITIONER & STATE EX #1                    35l726.tif    9

       ORDER                    07/26/2011   ORDER DENIN.G APPLICATION FOR WRIT                              351780,tif    2

69.    FAX CONFIRMATION         07/26/2011   FAX CONFIRMATION tb RUDY & BCSO BAZAN                           351781.tif     1

       NOTICE RETURNED
       UNCLAIMED-NOT
       DELIVERABLE AS
ZQ.                             08/03/2011   NOTICE RETURNED UNCLAIMED- RTS RELEASED                         352299,tif     1
       ADDRESSED/NO SUCH
       NUMBER/INSUFFICIENT
       ADDRESS

71.    REQUEST                  08/09/2011   REQUEST FOR RNDINGS OP FACT AND CONCLUSIONS OF LAW              352550.tif    4


                                             MOTIONFOR APPLELLATE RECORD WITHOUT CHARGE PURSUANT TO
72.    MOTION                   08/17/2011                                                                   353072.tif    5
                                             TRAP 20,2

73.    Remarks                  08/17/2011   Remarks - FINANCIAL STATEMENT                                   353073.tif    4

74.    Transmittal Letter       08/18/2011 Transmittal Letter                                                353l26.tif    1

       FINDINGS OF FACTS        08/29/2011   FINDINGS OF FACTS                                               353656.tif    4


76.    NOTICE                   08/29/2011   NOTICE OF PAST DUE FINDINGS OF FACT AND CONCLUSIONS OF LAW      353657.tif    2 .

                                             JUAN GABRIEL CISNERO'S REQUEST FOR ADDITIONAL AND AMENDED
77.    AMENDED                  09/08/2011                                                                   354071.tif    8
                                             FINDINGS OF FACT AND CONCLUSIONS OF LAW

21.    AMENDED                  09/14/2011   FIRST AMENDED WRIT OF HEABEAS CORPUS VeARI^                     354281.tif    83

79.    NOTICE OF SETTING    ■   09/20/2011   NOTICE OF SETTING 9/22/0 ll':30AM       ''                      354461.tif    3

80.    AMENDED                  09/26/2011   AMENDED NOTICE OF SETTING- 9/23/2011 @ 10:45AM                  354S90.tif     1

                                             MOTION FOR APPELLATE RECORD WITHOUT CHARGE PURSUANT TO
81.    MOTION                   10/07/2011                                                                   354836.tif    7
                                             TRAP 20.2     FINANCIAL STATEMENT*'**** EMAILED TO SONIA****

82.    NOTICE OF APPEAL         10/21/2011   NOnCE OF APPEAL :                                               355451.tif     1

       DESIGNATION OF
83.                             10/21/2011 DESIGNATION OF RECORD OF APPEAL                                   3554S2.tif    1
       RECORD OF APPEAL

       AFFIDAVIT OF
84.                             10/21/2011   AFFIDAVIT OF INDIGENCY                                          355453.rif    2
       INDIGENCY

       DOCKETING
15,                             10/21/2011   DOCKETING STATEMENT                                             355454,tif    3
       STATEMENT

86.    Remarks                  10/25/2011   Remarks-GMRRR TO THE 4TH COURT OF APPEALS                       355471-.ttf    1

       POST OFFICE STAMPED
87.                             10/28/2011 POST OFFICE STAMPED RECEIPT                                       355551.tif     1
       RECEIPT

                                             CERTIFIED MAIL RETURNED SERVED TO THE 4TH COURT OF APPEALS
M.     CERTIFIED MAIL           10/31/2011                                                                   355607,tif     1
                                             ON 10/28/11

IS.    NOTICE                   11/22/2011   NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS                  356411,tif     1


21.    CORRESPONDENCE           12/05/2011   CORRESPONDENCE FROM JUAN GABRIEL CISNEROS                       356719,tif     1

Si.    LETTER                   12/19/2011   LETTER FROM THE COURT OF APPEALS                                356994.tif     1


92.    CERTIFIED MAIL           12/19/2011   CERTIFIED MAIL- 7008 1830 0002 8951 4701                        357026.tif     1

93.    LETTER                   12/27/2011   LETTER from the 4TH COURT OF APPEALS                            357275.tif     1


21.    CERTIFIED MAIL           12/27/2011   CERTIFIED MAIL RETURNED & POST OFFICE RECEIPT                   357277.tif    2

95.    ORDER                    01/03/2012 ORDER FROM THE 4TH COURT OF APPEALS                               357379.tif    2


21.    LETTER                   01/03/2012 LETTER FROM JUAN GABRIEL CISNEROS                                 357380.tif     1


92.    LETTER                   01/03/2012 LETTER MAILED TO JUAN                                             357386.tif     1

       TRIAL COURT
       CERTIFICATION OF
98,                             01/11/2012 TRIAL COURT CERTIFICATION OF DEFENDANTS RIGHT TO APPEAL           357813.tif    2
       DEFENDANTS RIGHT
       TO APPEAL

                                             Remarks- SPOKE TO LUZ FROM THE 4TH COURT OF APPEALS AND SHE
99.    Remarks                  01/11/2012 ADVISED ME TO DO A SUPPLEMENT ON THE TRIAL COURTS
                                             CERTIFICATION

                                             Remarks- MAILED TO 4TH COURT OF APPEALS- CMRRR#700B 1830 0002
100,   Remarks                  01/11/2012                                                                   357817.tif     1
                                             8951 2912
                    191, CERTIFIED MAIL   01/19/2012- CERTIFIED MAIL SERVED TO 4TH COURT OF APPEALS ON 1/17/12        358099.tif   1

                                                       Remarks- APPLELLANT'S RESPONSE TO SHOW CAUSE ORDER ENTERED
                    102.   Remarks        01/24/2012                                                                  358316.tif   2
                                                       ON.DECEMBER 28, 2011

                    103.   LETTER         01/24/2012 LETTER FROM THE 4TH COURT OF APPEALS                             358318.tif   1


                           MEMORANDUM
                    104.                  02/13/2012 MEMORANDUM OPINION/ORDER                                         359039.tif   3
                           OPINION

                                                       Remarks- MOTION FOR EXTENSION OF TIME TO FILE MOTION FOR
                    105.   Remarks        02/24/2012 REHEARING.... SENT TO THE 4TH COURT OF APPEALS BY JUAN GABRIEL   359449.tif   3
                                                       CISNEROS.... COPY MAILED TO US

                                                       CORRESPONDENCE FROM JUAN MOTION FOR REHEARING.... HE MAILED
                    106. CORRESPONDENCE   04/10/2012                                                                  360846.tif   10
                                                       TO THE 4TH COURT OF APPEALS

                    107. CORRESPONDENCE   05/30/2012 CORRESPONDENCE FROM THE DEFENDANT                                362373.tif   2

                    108.   LETTER         05/31/2012 LETTER TO JUAN FROM THE DISTRICT CLERK'S OFFICE                  362434.tif   1



User: Annette - Annette Johnson (admin)                Brooks County, District Clerk           session: 3CE36B06639CF2763A075BB062C82FD6
                                                                                                        ik
                                                   ■VE 2/




                                 MEMORANDUM OPINION

                                         No. 04-11-00870-CR


                             EX PARTE JUAN GABRIEL CISNEROS

                     From the 79th Judicial District Court, Brooks County, Texas
                                   Trial Court No. 88-02-02179-CR
                             Honorable Marisela Saldana, Judge Presiding

PER CURIAM

Sitting:          Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: February 8, 2012

DISMISSED FOR LACK OF JURISDICTION

           The trial court denied appellant's application for writ of habeas corpus on July 25, 2011.

The notice of appeal was due to be filed August 24, 2011. Tex. R. App. P. 26.2(a)(1). A motion

for extension of time to file the notice of appeal was due on September 8, 2011. TEx. R. App. P.

26.3. Appellant filed his notice of appeal on October 21, 2011 and he did not file a motion for

extension of time. Accordingly, on December 28, 2011, this court ordered appellant to show

cause in writing why this appeal should not be dismissed for lack of jurisdiction. On January 23,

2012, appellant responded by stating a request for findings of fact were filed by his attomey on

August 9, 2011 and, following a September 23, 2011 hearing, the trial court stated it would file

findings but failed to do so.
                                                                                    04-11-00870-CR




       The time in which to file a notice of appeal in a civil appeal may be extended by the

timely filing of a request for findings of fact and conclusions of law. See Tex. R. App. P.

26.1(a)(4). However, iii a criminal appeal, only the filing of a motion for new trial will extend a

defendant's time in which to file a notice of appeal. See Tex. R. App. P. 26.2(aX2). Therefore,

appellant's request that the trial court enter findings offact did not extend the deadline by which
he was required to file his notice of appeal.

       Accordingly, we must dismiss this appeal for lack ofjurisdiction.



                                                            PER CURIAM


DO NOT PUBLISH




                                                -2-
                            NO.     2179



THE STATE OF TEXAS                  ][        IN THE DISTRICT COURT

VS.                                 ]I        OF BROOKS COUNTY, TEXAS


JUAN GABRIEL CISNEROS               ][        79TH JUDICIAL DISTRICT




ORDER DISCHARGING DEFENDANT FROM DEFERRED ADJUDICATION PROBATION



      THIS DAY, came to be heard the matter of determining whether
the judgment of conviction and placing the defendant on deferred
adjudication probation heretofore entered in this cause should be
set aside and the Defendant discharged from deferred adjudication

probation, and the Court after hearing the evidence submitted and
it appearing from said evidence that the defendant was indicted in
this cause for the felony offense of       Possession of Marihuana
and on the    27th     day of      February, 19 89 , was convicted
therefore, and that the imposition of sentence was suspended and

the Defendant placed on Deferred Adjudication probation for a
period of    two (2)       years and it further appearing to the
satisfaction fulfilled, it is accordingly considered, ORDERED AND

ADJUDGED by the Court that the Defeindant's deferred adjudication
probation be^Jterminated and Defendant be discharged from said
deferred Adjudicatibrt probation.
                 tT


      SIGNED AND ENTERED this              day of                        19




                                    TERRY A. SAIJALES
                                    DISTRICT JUDGE
                                    79TH JUDICIAL DISTRICT
                                    BROOKS COUNTY   r TEXA^, /


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. United Stales Penitentiary
P.O.Box 3900
Adelanto, CA.92301
United States




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                                                                Clerk Of Fourth Court Appeal
                                                               300 Dolorosa                                   I
                                                               Suite 3200
                                                               SAN Antonio, TX 78205
                                                               United States




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